USERRA Employer Requirements: A Guide to Employer Rights and Responsibilities for Employing Military Veterans
The relationship between an employer and their employees involves many rules and stipulations created to protect both parties. If that employee is a military veteran, however, the requirements are slightly different than with the traditional employee.
In order to protect military members from being discriminated against in the workforce, there are laws in place that employers must abide by. In order to support military employees and have things go as smoothly as possible for your business, it’s important to know your rights and responsibilities as an employer working with military veterans.
Table of Contents
- 1 When Your Employee is Preparing for Deployment or Military Leave
- 2 Your Obligation to Reemploy Returning Military Employees
- 3 Time Limit for Military Employees to Reapply for a Job
- 4 Pay Rate, Seniority, and Scheduling: Employer Responsibilities
- 5 Veteran Accommodations: Helping Your Employees Readjust
When Your Employee is Preparing for Deployment or Military Leave
One of the difficult aspects for military employees (as well as employers) can be preparing for deployment. Some military employees know their orders, and can let their employers know ahead of time when they will be away completing their military duties. Those in the reserves, for instance, have more knowledge about their required drill duties and dates ahead of time.
However, that is not always the case. For that reason, the obligation of the military employee is to give verbal or written notice, but there is no particular amount of time before their leave that they must give their notice. This is because, for some, they don’t get much notice either.
When an employee gives their notice, you can place them on a military leave of absence until they return. If you are able to get more advance notice from the employee, you can prepare by scheduling time off, training an employee to fulfil their duties, and making further arrangements for their obligations. However, once they return, they are entitled to their position.
Your Obligation to Reemploy Returning Military Employees
One of the major employee rights as an active duty military member or veteran under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is the promise of reemployment after returning from duty. As an employer, it’s important to understand your obligation for reemployment to protect yourself and support your military employees.
Eligibility Criteria for Reemployment:
- Was the employee absent to perform military service?
Military employees can’t just leave for any reason, it has to be to perform military service to fall under protections lined out in the USERRA.
- Did the employee give notice before taking military leave?
The employee must have given you some sort of notice. This is tricky, however, because of the undefined time requirement. Technically, if you were told by the employee that they were a part of the military, you were told about the threat of leave as well. This is to protect military employees if they are called to duty without warning.
- Was the deployment/military leave period less than 5 cumulative years away from the civilian job?
Employment protections allow for up to five cumulative years of military leave for employees. After five years, the employee no longer meets the eligibility criteria for reemployment.
- Was the employee dishonorably discharged from military service?
If the employee was dishonorably discharged from their service, you are not obligated to employ them upon their return.
- Did the employee report back to the civilian job in a timely manner?
The employee must report back to you in a timely manner after their return from duty. That time limit is dependant on the employee’s length of leave.
Time Limit for Military Employees to Reapply for a Job
One of the stipulations that a military employee must follow to fall under rights outlined in the USERRA is reapplying for their position in a timely fashion. Though that time frame is dependent on their length of deployment, each employee must reapply in that time or you are not obligated to rehire. However, military employees tend to be great about following these stipulations and always show great work ethic – one of the many perks to hiring military servicemembers and veterans.
- 1-30 days: The employee must report back at the beginning of the first regularly scheduled work period on the next calendar day. Though the employee is allowed necessary travel time and eight hours of rest.
- 31-180 days: The employee must submit an application for reemployment within two weeks of completing their duty.
- 180 days or more: The employee is allowed 90 days after service to submit an application for reemployment.
Pay Rate, Seniority, and Scheduling: Employer Responsibilities
Not only does the USERRA protect military servicemembers from losing their civilian jobs if they have to leave for deployment, it also protects all aspects of their pay rate, seniority, scheduling, and health care. Not following these stipulations in reemployment is veteran discrimination and is punishable by law. No matter how long an employee has been with you, you must maintain their job status while they are deployed or fulfilling military duties. An employee can gain seniority, receive promotions, and get pay raises while on leave. This includes vacation time and other benefits gained by seniority. Employees are also given rights to maintain health coverage and pension plans.
If you’ve filled the position, that employee must vacate it in order for it to be reassigned to the military employee. Just as they are required to come back to work in a timely manner, you’re required to hire them back in a timely manner as well. However, if you’ve eliminated this position or department, you will have rights in terms of denying employment.
Veteran Accommodations: Helping Your Employees Readjust
Depending on the circumstances surrounding the employee’s deployment, you may have a readjustment period in which you’ll be responsible for accommodating them. Readjustment might just be an update on operations, but other readjustment periods may have to do with accommodating an injury sustained during duty. Some servicemembers have a hard time finding employment, so resources that help veterans find jobs are highly important. For this reason, military members keeping their jobs and being protected is paramount. Accommodating them is just as important to their success.
Ensuring Your Veteran Employee Is Not Disadvantaged
Legally, “disadvantaged” means many things. Your responsibility as an employer is to work with your veteran and military employees in ways that help them adjust to their job after their absence. This includes refresher training, any additional training to reach their seniority level, coaching, access to updated materials, and any other reasonable accommodations they may need. This has been a challenge for many employers looking to hire employees back in a timely fashion, while working to get them trained quickly. The key is to be prepared, set expectations, and understand the laws in place are to protect military members from being discriminated against for agreeing to serve.
For veterans that sustain an injury in duty, employers are required to make accommodations for their disability or injury. Employers should also note that an injury pushes back the employee’s deadline in reapplying for their position. Not only are service members protected in their employment by the USERRA if they are hurt during leave, they are also protected under the Americans with Disabilities Act (ADA) and employers must comply with both. Ensuring your employee isn’t disadvantaged means doing everything you can to offer tools and accommodations that will allow them to be successful in the position they left as if they hadn’t been gone at all.
Being the employer of a military veteran or servicemember who is required to complete their military duty is not always easy. Many of the stipulations outlined in the USERRA seem to favor the wellbeing of the employee, which is true. Because many employees have experienced discrimination as a result of their service, action had to be taken and laws were created. There’s no doubt that it can be difficult to be the employer during these circumstances, but there’s no denying how much more difficult it is to be the employee being deployed and coming back without a job or resources to help them readjust. For this reason, it’s important to recognize the necessity in the USERRA. Knowing your responsibilities will protect you as well as your military employees.
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Chelsy is a writer from Montana who now lives in Boise, Idaho. She graduated with her journalism degree from the University of Montana in 2012. She enjoys talk radio, cold coffee, and playing Frisbee with her dog, Titan. Follow Chelsy on Twitter @Chelsy5
This post was updated February 28, 2019. It was originally published February 15, 2018.