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New USERRA regulations affect all employers
January 26, 2005
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Sunrise, Fla. -- A new federal law signed by President Bush on December 10, 2004, significantly increases workplace protections for employees on military leave and places new burdens on employers by amending portions of the existing Uniformed Services Employment and Reemployment Rights Act (USERRA).

The newly-passed Veterans Benefits Improvement Act of 2004 increases from 18 months to 24 months the maximum length of time that employers must offer employer-sponsored health coverage under USERRA to employees on military leave.

The Act also requires every employer to notify all employees annually of their legal rights under USERRA. Employers must comply with this notification requirement no later than March 10, 2005.

Turning employment law on its head

While USERRA has been in place since 1994, the new revisions create additional compliance obligations for all employers and will likely increase employee awareness of the law.

"USERRA applies to all employers, no matter what size, whether public or private sector," says Ashley Kaplan, head of the G.Neil labor law team. "Many employers will be surprised at the full extent of protections it offers for employees in the military.

"Employers need to know that USERRA turns some of the basic tenets of employment law - employment at will, for example - on their heads. It also provides for injunctive relief, multiple damages and attorney's fees."

What employers need to know about USERRA

"By providing employment protections for active-duty military personnel, USERRA simultaneously limits an employer's freedom to hire new employees and to promote current ones," says Kaplan. "And given the large number of military reservists and National Guard troops who have been called to active duty in recent months, employers need to be especially aware of their obligations under USERRA."

Kaplan advises employers to brush up on these USERRA basics:

Employment Rights: In general, an employee returning to military duty is entitled to reemployment in his original position - or one of comparable seniority, status and pay - unless workplace conditions have changed so radically that reemployment would be "impossible" or "unreasonable."

The Escalator Principle: A returning worker must be placed on the seniority scale not at the level she left, but at the level she most likely would have reached had she stayed on the job. Conversely, if a soldier's job is eliminated in a downsizing, the employer isn't required to create a new one.

Vacations and Benefits: If your company grants employees vacation days based on years of service, the returning soldier's benefit must be calculated as if he never left. If your retirement plan has a specific vesting schedule, the returning employee must be credited with the time spent on active duty.

Discrimination Prohibited: Employers may not discriminate or retaliate against any employee or applicant based on that individual's membership in, application for, or performance in a uniformed service.  
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