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Reemployment Rights For Reservists And National Guard Members

Jan. 30, 2003
No. 02-82

With the current call to active duty of reservists and National Guard members, it is critical that employers understand their legal obligations and uniformed personnel know that their civilian jobs will be waiting for them when they return from deployment.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 guarantees that veterans, reservists, and members of the National Guard will not suffer employment discrimination or be denied reemployment rights because of their military active duty obligations. The law covers all the uniformed services, including the Public Health Services.

Provisions of USERRA provide that service members, reservists and National Guard members returning to civilian employment after a period of active duty be employed in their same job or a similar one with the status, pay, and benefits they would have attained had they never been absent for military service. Additional provisions require employers to make reasonable efforts to train or retrain returning service members to refresh or upgrade their skills so they might qualify for reemployment. Reasonable efforts must also be made by employers to accommodate service members who have incurred service-connected disabilities.

USERRA also protects pension and health benefits by stipulating that a reemployed person must be treated as not having incurred a break in service, that service time must be considered for vesting and benefit accrual purposes, and that an employer is liable for funding any portion of the plan while the person is on active duty or required training.

In order to be covered by USERRA, service personnel must have received an honorable discharge. Service personnel must notify their employer, orally or in writing, in advance of any military service unless time or national security prevents such notification. Further, a person must return to work within a specified time, depending on the duration of the absence. An employer may be excused from reemploying a returning service member if business circumstances have changed so much that it would be impossible or unreasonable to comply with the law.

Another important provision of USERRA prohibits an employer from discriminating in employment or taking any adverse employment action against a person because of their past, present, or future military obligations. The ban on discrimination is broad, extending to most areas of employment including, but not limited to, hiring, promotion, reemployment, termination, and benefits. This provision applies to all employers, public and private, regardless of size.

To help employers, veterans, reservists and National Guard members better understand this complex law and their rights and responsibilities under it, the U.S. Department of Labor's Veterans' Employment and Training Service (VETS) has developed an interactive computer program available on the Internet. By answering a series of yes or no questions, a person can learn about the most important aspects of the law. In addition, VETS' state directors and other trained staff are available to assist any employer, veteran, reservist, or National Guard member. VETS' state directors can be found in the U.S. Government section of local telephone directories under the U.S. Department of Labor, Veterans' Employment and Training Service.

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