Military Reemployment Rules

            Since 2001, the United States has deployed more than 1 million troops for the wars in Afghanistan and Iraq. This means many employers are faced with reemployment issues concerning employees that left their jobs to undertake military service.

            The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 regulates the rights of individuals who voluntarily or involuntarily leave a job to serve in the military.

            USERRA requires every employer to post a notice in the workplace informing employees of their veteran rights, whether or not you actually have any employees leave their jobs to serve.

            This poster is a new requirement as of December 2005. That means you probably don’t have one up yet on your employee bulletin board. Time to pin one up wherever you customarily place workplace notices. The effective date for having one posted was January 18, 2006.

            Don’t pay one of those poster services an astronomical sum to get this poster (or any other). All required posters can be downloaded from the internet site of the agency that requires them to be posted.

            For the USERRA poster, go to www.dol.gov/vets/programs/userra/poster.htm. It is a one-page document for private sector employers and it is easily printed.

            If you don’t have any employees who are leaving or have left your employment for the military, then posting this notice is the end of your responsibility for now.

            If you do have employees who quit to fulfill a military obligation, then you need to know more about USERRA. First, understand that your military employee has a right to continue his and his family’s health insurance while in the military for up to 24 months. When he returns, he has to be reinstated in the health plan, whether he continued it or not, without any pre-existing condition exclusions (except military injuries or illnesses).

            You can’t make him use up his vacation and sick leave pay while he is gone. It has to be waiting for him when he returns, as well as any leave he would have earned had he not been doing his military service.

He also has the right to get his job back when he is honorably discharged from the military if he has been gone less than five years. Once he returns, he has to be placed back in the position he would have been in if he hadn’t left, with all the incremental raises, promotions and benefits he would have received were it not for his military service.

Returning soldiers have between 1 and 90 days to reapply after discharge, depending on the length of military service. Since the average guard mobilization right now is 460 days, almost all returning National Guard members are entitled to the longer 90-day reapplication period.

More than 14,000 U.S. military service personnel have been wounded so far during this war in Iraq. Service members convalescing from injuries received during service have up to two years from the date of completion of service to return to their jobs or apply for reemployment.

            USERRA also requires that you provide the necessary training and coaching to returning service members to refresh or upgrade their skills to help them keep their jobs.

            Employers need to be particularly careful with the job protections from termination that USERRA gives returning soldiers. Even though Texas is an at will employment state that allows employees to be fired at any time for any reason, USERRA overrides the at will employment rule.

            USERRA provides that returning service members may not be discharged, except for cause, for 1 year after reinstatement (for service of more than 180 days), or for 6 months (for periods of service from 31 to 180 days).

            Don’t even consider a “for cause” termination in the first year after reemployment without consulting an employment lawyer. While there may be times when you feel you must fire a recently-returned veteran “for cause”, as an employer you and your attorney should carefully consider whether your documentation, your reasons and your employees’ testimony will be enough to avoid the discrimination and retaliation provisions of USERRA.

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