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USERRA- Reemployment After Military Leave

  Military Law  -   POSTED: 2007/02/17 01:05

The Uniformed Services Employment and Reemployment Rights Act requires an employer, with few exceptions, to give an employee military leave when that employee is:

- Drafted
- Enlists in a uniformed service
- Is called to active duty

Employees who are on military leave are entitled to:

- Leave employment status
- Continuation of employment benefits

Reemployment After Military Leave

In order for an employee to be eligible for reemployment, he or she must give advance notice (preferably written) of the military leave. The total length of absence from the job can't exceed five years.

Before returning to the job, the employee must also notify the employer than he or she intends to return to work once the military service is completed.

If the leave is for less than 91 days, the employer must reemploy the employee at the position that he or she would have held if the employment had been continuous.

If the leave is longer than 90 days, the employer must reemploy the employee in the position that he or she would have been in if there had been continuous employment, or in a position of like status, pay and seniority.

If an employee would have been included in a layoff while he or she was gone, however, the employer doesn't have the duty to reinstate that employee.

Employers must reasonably accommodate a qualified employee with a service-related disability.

Enforcement of Rights

If an employee doesn't think than an employer is following the law, her or she can file a complaint through a local office of the United States Department of Labor, VETS.

Remedies that may be available to an employee through the Department of Labor may include:

Return to the job
Back pay
Lost benefits
Corrected personnel files
Lost promotion opportunities
Retroactive seniority
Pension adjustments
Restored vacation
An employee may recover only the actual dollar amount lost, without penalty to the employer.

Another option for resolving problems is through a lawsuit filed by the U.S. Attorney General or the Office of Special Counsel. Courts can make an employer pay what is found due to the employee, and double this amount in situations where it is determined that the employer 'willfully' violated the law.

Military leave rights under state law may supplement but do not restrict the rights established by USERRA. If there's a conflict between the two, USERRA should apply.


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