HR Tips from
Jan Baker Facilitates

USERRA

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HR Tips from Jan Baker Facilitates

It is anticipated that, beginning in March, the additional troops sent to
Iraq as part of President Bush's "surge" will begin returning home. We felt
that this might be a good time to review employers' responsibilities around
re-employment of these troops.

The federal law regulating reemployment of US troops is the Uniformed
Services Employment and Reemployment Rights Act (USERRA). The critical
points that you will need to know and follow if you have a returning service
member (or a request for military leave) are:

1. USERRA applies to every employer, regardless of size or industry
sector. Unlike many other employment laws, there is no threshold of minimum
number of employees.

2. All employers must grant military leave when requested by the
service member. You are entitled to ask for documentation to show the leave
is for military purposes. In most cases, this will be a letter from the
unit's commanding officer.

3. The leave is unpaid under the USERRA law, however, some companies
may choose to continue to pay leave-takers their salary or the difference
between their military and civilian pay. As an employer, you must also
continue to offer health benefits for up to 24 months. The first 31 days
are at the employee's normal rate of contribution. After 31 days, benefits
must be offered through COBRA and the employee may be (but does not have to
be) liable for up to 102% of the premium.

4. Seniority and pension credit must continue to accrue just as if the
employee were still on the job.

5. The employee's job is protected for up to 5 years of cumulative
military service. However, shortly after 9/11, President Bush declared a
state of national emergency and that continues today. When such a
declaration is in place, the legal view is that the 5 year rule is suspended
until the declaration is lifted. If you plan to deny re-employment because
a returning veteran has exceeded the 5 year limit, be sure to seek legal
advice prior to taking any action.

6. When leave-takers return, they must notify you in writing, or
verbally that they wish to return. The time periods for notification and
return vary depending on the length of the leave. The maximum notification
period is 90 days after leaving active duty. The returning employee must be
placed in the position they would have had if they had stayed. If they are
not qualified for the position, they have a right to receive training for
it. Additionally, depending on their time in the military, returning
veterans are guaranteed their jobs for up to one year, unless terminated for
cause.

7. Employees on military leave must be treated the same as employees on
disability leave or any other permitted leave. If benefits accrue for any
of these other leaves, they must accrue for military leave-takers.
Additionally, employers are prohibited from taking any negative employment
actions against an employee for serving in the military.

8. You can legally refuse to re-employ a returning veteran if you had a
lay-off that would have affected them, if your company's circumstances have
changed so much that reinstatement would be impossible or unreasonable, or
if, after reasonable accommodation, a disability incurred by a veteran in
the service proves to be an "undue hardship" on your business. If you do
deny re-employment, you have the burden of proving that your action was
legal.

Regards,
Carol
Jan
Nancy

Jan Baker Facilitates
505 SW Mill View Way,
Bend, OR 97702
541-389-2141

If you are considering outsourcing all or part of your human resource processes, contact a Cardinal Advisor at 800.342.4742. We would be happy to provide you a free consultation.