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The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides job restoration and other rights to service members. USERRA applies to employers with as few as one employee. Here are some questions about military service: Q. An employee who recently returned from leave has inquired about the status of his 401(k) account. What obligations does the employer have? A. Employers are not required, nor are employees entitled, to make contributions to a 401(k) plan while performing military service. Upon reemployment, an employee has up to three times the period of the military service (but not more than five years) to make up missed contributions. Similarly, pension entitlements do not mature until the individual is reemployed following service. Q. An employee on leave for 18 months will be returning shortly. Is the employer complying with USERRA if they return him to the position he left? A. Not necessarily. First, it is important to remember that, barring exceptional circumstances such as a RIF that eliminated the individual’s position, the employee has an absolute right to reinstatement. If a temporary replacement was hired, you must either reassign or terminate that person and reinstate the service member to his original position. You cannot give them a merely comparable position if that position involves different job duties or puts them in a less advantageous situation as far as promotion opportunities and the like. However, the inquiry does not end there. USERRA applies the “escalator principle” in an effort to determine the position, pay and benefits the service member would have attained if he had not been absent for service. In some cases, the employee may be entitled to a promotion or pay increase upon return. Every situation is unique. In some cases, you must provide the employee with a window of time for him to complete the necessary training or coursework required for the promotion. Q. An employer has an employee who volunteered for additional military training. Is that person protected by USERRA? A. Yes. USERRA covers all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war. USERRA protects members of the National Guard, reserve military personnel and persons serving in the active components of the Armed Forces. Certain members of the National Disaster Medical System are covered by USERRA. Q. Can an employer require an employee to substitute paid leave for military leave? A. No. USERRA forbids an employer from requiring an employee to use his vacation, annual, or similar leave during such period of military service. The employee is permitted, but not required, to request that military service be required by the employer as paid vacation, annual or similar leave. All employers, but especially large employers that may have numerous employees in active military service, should review their policies and ensure that managers and human resources staff understand USERRA. The cost of a mistake can be high. Recently, American Airlines reached a tentative settlement with the U.S. Department of Justice to pay $345,772 to resolve a USERRA class action alleging improper restrictions on the ability of company pilots who missed time due to military commitments to earn vacation and sick leave benefits.
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