by Carolyne S. Kalson, Esq.
The USERRA law prohibits employment distribution against people who serve in the military and provides certain reemployment rights on their return from service. All employers are covered. There is no exemption for small businesses. All types of military service are covered, including duty performed on a voluntary basis in time of war or peace. A salaried supervisor or professional has the same rights under the law as an hourly wage earner.
There is no obligation for an employer to pay employees while on military duty. Rather the main emphasis of the law is reinstatement to the former job position in the same position as if the employee never left.
The new regulations provide some guidance on how USERRA will be implemented:
Escalator principle. The law says that when a service member returns, the individual is restored to the position he or she would have had, if not for the military service- under what is known as the “escalator principle”. The escalator principle means that returning employees step back on the employment “escalator” at the point they would have reached if their job had not been interrupted by military service. The escalator may have gone up or down. Co-workers may have received promotions during the period the service member was away. The employee may no longer be qualified to perform his pre-service job because of injuries sustained during that service. The regulations provide guidance on those issues.
Prompt reemployment. USERRA provides for prompt reemployment after employees return from military service. The regulations state that in most cases, “prompt” means within two weeks of the service member's application for reemployment. The regulations also specify the time period within which a returning service member must submit an application. That period varies, depending on how long the employee has been away. The regulations also make it clear that a service member should have a sufficient amount of time to report to her military unit and report back after the period of service.
The DOL also has a poster which you can download and post in the workplace to meet your legal obligation to inform employees of their rights. The poster may be found at www.dol.gov/vets/programs/userra/USERRA_Private.pdf#Non -Federal. Finally, the agency's website also has an “E-Laws USERRA Advisor,” which guides you and your employees through the law's requirements. The website provides names and telephone numbers of state directors, and you can call them with any questions you might have about complying with the law. If you would like further information on this subject please contact Carolyne at 732-785-0800
Disclaimer: This article provides general information only and is not intended as legal advice.