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UNIFORMED SERVICES EMPLOYMENT AND
REEMPLOYMENT RIGHTS ACT

Sample Employer Policy

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is codified in title 38, United States Code, sections 4301-4333 (38 U.S.C. 4301-4333). You can find the complete text of USERRA and other valuable information on the website of the National Committee for Employer Support of the Guard and Reserve (ESGR). Go to www.esgr.com and click on "The Law/USERRA."

In response to numerous requests, ESGR has prepared this sample employer policy on compliance with USERRA. This is a sample policy only and does not replace the advice of legal counsel. Because of the differences in specific state laws and individual employment situations, policies may vary greatly from this sample policy. You should refer this sample policy to your own legal counsel, as ESGR does not purport to give legal advice.

This sample policy summarizes USERRA, and is intended to incorporate all the minimum requirements of the law. For definitive information see the text of the statute itself. USERRA does not supersede any employer policy, collective bargaining agreement, or state law that provides greater or additional rights to those who leave civilian employment for service in the uniformed services. See 38 U.S.C. 4302(a). In other words, your company is certainly permitted and indeed encouraged to do more than the law requires. Indeed, some state statutes and local ordinances may require more than Federal law. In any case, ESGR recognizes and honors those employers who go "above and beyond the call of duty" in accommodating military service by employees.

Sample Employer Policy Part II

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), our company is required to grant an unpaid military leave of absence to any employee who requests such leave in order to perform service in the uniformed services. It is the policy of our company to comply with USERRA and all other state, federal , and local laws. In case of any conflicts between this policy and federal, state, or local laws, such applicable laws shall control, subject to conflict of laws principles.

The uniformed services are the Army, Navy, Marine Corps, Air Force, Coast Guard, and the commissioned corps of the Public Health Service. This includes the Reserve components of these services and the Army National Guard and Air National Guard. Under another Federal law, enacted in 2002, Congress has extended reemployment rights under USERRA to persons who serve as Intermittent Disaster Response Appointees (IDRAs).

IDRAs are temporary, intermittent employees of the U.S. Department of Health and Human Services. They respond, often on very short notice, to emergencies involving infectious diseases or weapons of mass destruction, and they also engage in training for such dire contingencies. They are protected by USERRA both for actual emergencies and for training.

USERRA broadly defines the term "service in the uniformed services,"
as follows:

The term "service in the uniformed services" means the performance ofduty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent from a
position of employment for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32

38 U.S.C. 4303(13)(emphasis supplied).

An employee of this company who leaves his or her job for voluntary or involuntary service in the uniformed services will, upon giving us notice, be granted an unpaid military leave of absence. Some of our employees will perform inactive duty training in the National Guard or Reserve. Such inactive duty training is normally but not always performed on weekends. Those National Guard and Reserve members will also perform annual training and/or specialized training in their Reserve components. National Guard and Reserve service is no longer limited to "one weekend per month and two weeks per year." Many National Guard and Reserve members now perform training that is much more frequent and lengthy.

With two exceptions, our company is not required to pay an employee who is away from work performing service in the uniformed services. The first exception is under section 4316(d) of USERRA, 38 U.S.C. 4316(d). An employee who is away from work performing service in the uniformed services is entitled (not required) to use and be paid for any vacation that the employee has accrued and not used prior to the period of service. Normally, the company is not required to accede to an employee's request to take vacation at a particular time, but in this case we do not have that option. If the employee has vacation to use and requests to use that vacation during a period of service, our company is required to honor that request. We are not required to advance vacation days to an employee under these circumstances, but the employee is entitled to use any vacation days that he or she has already accrued.

The choice to use vacation during service rests entirely with the employee. It would be unlawful for the company to require the employee to use accrued vacation days in this way. Some employees will want to use their vacation days during service, in order to maximize earnings at a time of reduced income, after mobilization. Other employees will want to conserve their vacation days, in order to take vacation after returning from service.

The other exception relates to managerial and executive employees who are exempt from overtime rules under the Fair Labor Standards Act (FLSA). These employees work on a salaried rather than an hourly rate. If such an employee works part of the week here at the company but misses another part of the week while performing uniformed service, we are not permitted to dock the employee for the hours not worked. We are permitted to consider what the employee earns from the military, and to pay the difference. If the employee is away from work for the entire week, we are not required to pay anything for that week. This is an FLSA requirement, not a USERRA requirement.

USERRA applies to employees in probationary, seasonal, or "temporary" positions. There is no requirement that the employee have been employed for this company for any minimum period before the absence for uniformed service.

USERRA is not limited to the National Guard and Reserve. An employee who leaves employment with this company for service in the regular military also can have rights under USERRA. The law also protects an employee who takes a day or two off from work for the purpose of an examination to determine fitness to join any branch of the service. After completion of such an examination, regardless of the outcome, the employee is entitled to reemployment under USERRA.


ELIGIBILITY CRITERIA

An employee who leaves employment at this company for service in the uniformed services will be entitled to reemployment, provided he or she meets the USERRA eligibility criteria:



a. The employee (or an appropriate officer of the uniformed service) must have
    given us prior oral or written notice of the impending service.

b. The employee's cumulative period or periods of service, relating to this company,
     shall not have exceeded five years.

c. The employee must have completed the period of service without having received
    a punitive or other than honorable discharge or having been dismissed or
    dropped from the rolls of the uniformed service.

d. The employee must have made a timely application for reemployment or have
     been timely in reporting back to work.
 

PRIOR NOTICE

We would prefer that the notice be in writing, but oral notice is sufficient under the statute. We want employees to give us as much advance notice as possible, but we realize that circumstances arise where the employee does not receive notice from the service until the last minute. No specific amount of advance notice is required, but the notice must be given before leaving the civilian job. Advance notice is not required in those rare cases where advance notice is precluded by military necessity or otherwise impossible or unreasonable.

The specific wording of the employee's notice is of no consequence, so long as the employee conveys the information that he or she is leaving the job for the purpose of service. The use of a word like "resign" does not defeat the employee's right to reemployment, so long as the employee has informed us that military service is the reason for the resignation.

Our company recognizes that individuals serving in the National Guard and Reserve need time off from work sufficient to enable them to travel to the place of training and have a night of rest, before starting the training, so that they can perform the training in a safe and effective manner. We will approve requests to be away from work on Friday, and particularly Friday evening, prior to inactive duty training on Saturday.

FIVE YEAR LIMIT

The five-year limit is measured from the date of commencement of the individual's employment relationship with this company. Uniformed service performed before the individual's hire date is irrelevant for purposes of the individual's USERRA rights for this company. Reserve and National Guard training and involuntary call-ups do not count toward the individual's five-year limit. Some voluntary service is also excluded in computing the five-year limit. Please check with the personnel office before denying reemployment on the basis of the five-year limit.

RELEASE FROM SERVICE UNDER HONORABLE CONDITIONS

An individual does not have reemployment rights with this company if he or she has received a punitive (by court martial) or other-than-honorable discharge or if he or she has been "dropped from the rolls" of the uniformed service. Please check with the personnel office before denying reemployment on the basis of the characterization of the individual's service.

TIMELY APPLICATION FOR REEMPLOYMENT

Period of 1-30 Days of Service

After a period of less than 31 days of service, the employee is required to report for work at the start of the first full regularly scheduled work period on the first day after the completion of the period of service, the time reasonably required for safe transportation from the place of service to the individual's residence, and a period of eight hours (for rest). If reporting that next day is impossible or unreasonable because of factors beyond the individual's control (like an accident on the return trip), the individual is required to report for work as soon as reasonably possible thereafter.

Period of 31 Days of Service or More

If the period of service is greater than 30 days but less than 181 days, the individual is required to submit an application for reemployment within 14 days. If the period of service is 181 days or more, the individual must submit an application for reemployment within 90 days. No particular form is required for the application for reemployment, and our company will not try to deny reemployment based on quibbling with the wording. If the individual communicates with us, within the 14 days or 90 days, and tells us that he or she is available to return to work after service, we will offer reemployment to the individual.

Effect of Tardiness in Reporting Back to Work

Prompt Reinstatement

After a period of less than 31 days of service, the employee is required to report for work on the next workday, as explained above. The employee will be considered to be back on the payroll as of the time he or she reports for work.

After a period of 31 days or more of service, the employee is required to submit an application for reemployment. If the employee submits a timely application and meets the other eligibility criteria, we will act promptly on that application. We will not make the returning service member wait for a vacancy, and if training or retraining is needed we will offer it to the employee "on the clock." We will offer reemployment to the individual not later than the start of the second two-week pay period after the pay period when the individual submits the application for reemployment.

For example, assume that the individual submits the application for reemployment on Tuesday, December 30, 2003. The next pay period begins on January 5 and the second pay period begins on January 19. The individual will be offered the opportunity to report back to work and be back on the payroll as of January 19, if not sooner.

Continuous Accumulation of Longevity For Seniority Purposes

A person who returns to employment with our company after service in the uniformed services, and who meets the eligibility criteria under USERRA, is entitled to continuous company longevity for the entire period of the military-related absence. This includes the period between leaving the job and the start of the service, the period of service, the period (up to 90 days) during which the individual waited to submit the application for reemployment, and the period between the application for reemployment and returning to work.

For example, assume that Connie Smith joined our company on January 1, 2000. On November 1, 2002, she gave us notice of impending service and actually left the job on November 20, 2002. The person served on active duty from December 1, 2002 to November 30, 2003, and she applied for reemployment on January 15, 2004. Upon her return to work on January 29, 2004, she is entitled to continuous company seniority since January 1, 2000.

Upon reemployment, Connie Smith is entitled to pay raises, promotions, and other benefits that she would have received, in accordance with seniority, at some time between November 2002 and January 2004. It is our company policy to give the returning veteran the benefit of the doubt. We will accord Ms. Smith (and all others similarly situated) the promotions, pay raises, and benefits that she probably would have received if she had been continuously employed.

Continuous Accumulation of Longevity For Pension Purposes

Our company has two pension plans. The basic pension plan is a defined benefit plan, whereby a retiring employee receives a monthly benefit computed on a formula that includes years of company service and average compensation for the highest three years of company compensation. This defined benefit plan is funded entirely by the company.

We also have a supplementary defined contribution plan, funded jointly by the company and individual employees. An individual employee is permitted to set aside up to 10% of his or her company compensation, pre-tax, and the company will match up to 5% of the company compensation. Each employee has a separate account in this defined contribution plan.

A returning veteran who is reemployed by our company, and who meets the USERRA eligibility criteria, is entitled to be treated as if she had been continuously employed, for purposes of the defined benefit plan. For example, consider the case of Connie Smith, from the previous section. Assume that she works continuously (except for military-related interruptions) for our company until she retires on January 1, 2030. Her monthly pension check under the defined benefit plan will be exactly the same as what it would have been if she had not been away from work from November 2002 to January 2004.

The returning veteran who meets the USERRA eligibility criteria will be given the opportunity to make up missed employee contributions to the defined contribution plan. Such make-up contributions must be made within the period that begins on the date of reemployment and extends for three times the period of service, but not more than five years. All such make-up payments shall be made on a pre-tax basis. The employee will be given the opportunity to set aside up to 10% of her imputed income, during the period of service, even if she was not putting money in the defined contribution plan before the period of service. When she makes those contributions, after returning from service, the company will match all contributions, up to 5% of her imputed income.

Employer and employee contributions to the defined contribution plan account will be based on what she would have earned from the company during the military-related absence. What she earned from the military is irrelevant. The determination will be based on the pre-service rate of compensation, plus any pay raises or promotions that are based on seniority or cost-of-living that the employee would have received during the military-related absence.

Some employees of this company are compensated in such a way that the amount that the employee would have earned during the military-related absence is not readily determinable after the fact. For example, John Jones works in our sales force, and more than half of his compensation comes from commissions. It is impossible to determine exactly how much he would have earned in commissions, if his career at our company had not been interrupted by service. In that situation, the amount that Jones would have earned will be computed based on his average rate of compensation during the last year of company service before the military-related interruption. If he was employed for less than one year, the computation will be based on his average rate of compensation during his entire period of employment at this company.

Status

If the employee's period of service was less than 91 days, he or she is entitled, upon reemployment, to the exact job that he or she would have attained if he or she had been continuously employed. In most cases, that will be the same as the pre-service job.

If the period of service was 91 days or more, our company has the option to reemploy the returning veteran either in the position that he/she would have attained or, alternatively, in another position of like seniority, status, and rate of pay. Offering the returning veteran reemployment in a position that is not of like status is not a sufficient compliance with USERRA.

Location (commuting area) is an aspect of status. Offering to reemploy the veteran in a distant city is not a sufficient compliance with USERRA, unless the evidence establishes that the job itself was moved to that distant city during the employee's military-related absence. Other aspects of status include hours of work (Most employees prefer to work during the day, not at night.), opportunity to earn commissions or to be promoted, etc. If we offer the returning veteran reemployment in an alternative job, we must ensure that the alternative job is equivalent in all respects to the job that he or she would have attained if continuously employed.

If we offer the returning veteran reemployment in an alternative position, it must be a position for which the employee is qualified. Putting an employee in a position for which he or she is not qualified is a recipe for failure and would not be a sufficient compliance with USERRA.

Training or Retraining

If an employee returns to work after a long period of military service, he or she may find that many things have changed in the interim. There will have been technological developments and changes in ways of doing business. The returning veteran is entitled to the training or retraining that he or she would have received if continuously employed.

Special Protection Against Discharge, Except for Cause

The returning veteran who meets the USERRA eligibility criteria may not be discharged, except for cause, within one year after reemployment, if the veteran's period of service was 181 days or more. If the period of service was 31-180 days, the period of special protection is 180 days. If the employee is discharged during the special protection period, our company has a heavy burden of proof, to show that the employee was discharged for cause.

This special protection provision applies even if the employee was in an at-will or probationary status before leaving for service. The special protection provision is intended to protect the veteran from a bad faith or pro forma reinstatement. Please do not try to discharge a returning veteran during the special protection period without first checking with the personnel office.

Entitlements of Returning Disabled Veterans

Some of our employees who have been called to serve will return with temporary or permanent physical limitations, resulting from service-connected injuries or illnesses. In such a situation, we are required to make reasonable accommodations in equipment, scheduling, etc. in order to enable the employee to perform the duties of his or her escalated reinstatement position (the position that he or she would have attained if continuously employed). Of course, some disabilities cannot be accommodated. If the employee cannot be reinstated in the escalated reinstatement position, he or she is entitled to reinstatement in some other position, the duties of which he or she can perform despite the limitations. The employee is entitled to the position that comes as close as possible (in terms of seniority, status, and pay) to the position to which he or she would be entitled but for the disability.

Reinstatement of Health Insurance Coverage

An employee returning from service, and who meets the USERRA eligibility criteria, is entitled to immediate reinstatement of our company health insurance coverage upon reemployment. This applies to coverage for the employee and for family members who would have been covered if the employee had been continuously employed. This includes children born or adopted during the employee's military-related absence from work. There must be no waiting period, and no exclusion of "pre-existing conditions" except for conditions that the U.S. Department of Veterans Affairs has determined to be service-connected.

ENTITLEMENTS DURING SERVICE

Furlough or Leave of Absence Clause

An employee who is away from work performing service in the uniformed services is entitled to non-seniority benefits, during the military-related absence, if and to the extent that our company offers such benefits to employees on some other form of leave, like jury leave, educational leave, or maternity/paternity leave. Since our company has more than one form of non-military leave, the comparison must be to the most generous form of leave that we provide, whether that leave be paid or unpaid.

Continuation of Health Insurance Coverage During Service

An employee who notifies us that he or she will be away from work performing service is entitled to elect continued health insurance coverage, through our company, during the military-related absence from work. If the period of service (as called for in the individual's military orders) is for less than 31 days, the company is permitted to charge only the employee share of the cost of the coverage. If the period of service is greater than 30 days, the company is permitted (but not required) to charge up to 102% of the entire premium, including the part that the employer normally pays in the case of active employees. We are required to make this continuing coverage available to the employee who is away from work for service until the first of the following occurs:

1. The employee returns to work after service.
2. The employee allows the deadline for an application for reemployment to pass
    without having made such an application.
3. Eighteen (18) months have passed since the employee left his or her civilian job for
    service.

The right to reinstated coverage after service is not contingent on continuing coverage

during service. Most of our employees who leave for service of more than 30 days will not elect continued coverage during service, because during their service they are entitled to use the military health care system for themselves and their families.

Protection Against Discrimination

Section 4311(a) of USERRA provides as follows:

A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

It would be unlawful for our company to deny an individual initial employment, or to deny an existing employee any benefit, or to fire an employee, because of the person's membership in a uniformed service, obligation to perform future service, etc. It is our policy to obey this law. We will not consider military status or service when making hiring, promotion, or firing decisions.