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Understanding the protections provided to military workers under USERRA - II

In our last post, we started discussing the Uniformed Services Employment and Reemployment Rights Act, the landmark federal law that requires all employers -- no matter their size -- to place employees who have left to perform military service in the same position upon their return.

We'll continue this discussion in today's post, focusing on everything from the expansive nature of USERRA's escalator provisions to its time frames for returning to work.

Does USERRA's escalator provision work both ways?

As we discussed last time, USERRA's escalator provision provides that returning employees aren't just entitled to the same pay, benefits, seniority, etc. as they had when they originally departed to perform their military service, but also any pay increases and/or promotions they would have otherwise received.

However, it's important to understand this escalator provision does indeed work both ways, such that if co-workers in the same position as the military employee are laid off or demoted during his or her service, an employer may actually be within their rights to pursue the same course of action with them.

What about unionization?  

Experts indicate that compliance with USERRA's escalator provision is a relatively simple matter for employers if their workforce is unionized, as the employee returning from military service only needs to be reinstated in a position based on their years of service.

For employers with non-unionized workforces, experts indicate that the decision as to where to reinstate the employee returning from military service should be based on reference to other employees in similar positions.

Is there a particular time frame in which the employee must report back after completion of the military service?     

USERRA sets forth some very specific time frames in which employees returning from military service must report back to work:

  • Military service of 30 days or less: Employees must report back to work for the next regularly scheduled shift on the day after their release and an eight-hour rest period.
  • Military service of 31 to 180 days: Employees must apply for re-employment within 14 days of their release, indicating why they left, when the military service was completed and their desire to be reinstated.
  • Military service of 181 days of more: Employees must apply for re-employment within 90 days of their release, indicating why they left, when the military service was completed and their desire to be reinstated.

We'll continue this discussion in a future post …

In the meantime, consider speaking with an experienced legal professional whether you are an employer with questions about USERRA compliance or an employee who believes their USERRA rights were violated in some capacity.

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