By: dmc-admin//March 23, 2005//
John D. Finerty, Jr. |
On March 10, 2005 the Department of Labor issued a new regulation that requires employers to post a notice describing an employee’s rights, benefits and obligations under the Uniformed Services Employment and Re-employment Rights Act or "USERRA."
USERRA is the federal law that provides employment and re-employment rights to employees who leave their jobs, voluntarily or involuntarily, to serve in the military. This includes Reserve and National Guard service.
Under the new rule, the notice must inform employees of their obligations to request leave, their rights to reinstatement, and their rights to be free from discrimination and retaliation in benefits, discipline, and terms and conditions of employment. The notice must also inform the employees of their rights to health insurance coverage during the period of a military leave, and upon reinstatement.
Employers can obtain a poster free of charge by accessing the DOL’s Web site (PDF). Employers may also order free printed copies by calling toll free at 1-866-4-USA-DOL (1-866-487-2365).
Posting Requirements
The Department has indicated it will not penalize employers that failed to post the USERRA notice by March 10, 2005, but it does want prompt compliance. The notice must be posted where employee notices are customarily posted, such as near OSHA, FMLA or State Unemployment Compensation postings.
As an alternative, however, employers are allowed to distribute the notice to employees by hand, mail or e-mail. Employers that elect one of these alternatives should make sure new employees hired after distribution of the notice are also given a copy.
Legal Requirements of Military Leave
Companies with fewer then 20 employees are normally not covered by COBRA, but USERRA overrides COBRA. Therefore, all employers, regardless of size, must offer health insurance continuation options for Reservists or National Guard members called to active service.
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Replacement employees: Employers may fill vacancies legally while employees are on military leave.
Exceptions to USERRA
USERRA job protections have exceptions for some employers. For example, changed circumstances in the business may make rehiring an employee impossible or unreasonable, such as when a reduction-in-force would have included the individual regardless of military duty. Employers are also excused from rehiring returning service members, or from accommodating those who sustained disabilities during service, when the difficulty or expense would cause "undue hardship." This exception is essentially the same as under the Americans with Disabilities Act. Lastly, temporary employees, or workers whose terms would have expired during leave, are also not entitled to reinstatement.