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What are the basic reemployment rights when an employee returns following military service?

To qualify for protection under USERRA, a service member must be available to return to work within certain time limits. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person’s military service.
Service of 1 to 30 days:

The person must report to his or her employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service. If due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible after an 8 hour rest period.

Service of 31 to 180 days:

An application for reemployment must be submitted to the employer no later than 14 days after completion of a person’s service. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible on the next day when submitting the application becomes possible.

Service of 180 or more days:

An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service.

  1. Conditions that disqualify basic reemployment rights:
  2. Separation from the service with a dishonorable or bad conduct discharge.
  3. Separation from the service under other than honorable conditions.
    Dismissal of a commissioned office in certain situations involving a court martial or by order of the President I time of war. (Section 1161(a) of Title 10.)
  4. Dropping an individual from the rolls when the individual has been absent without authority

Does the Uniformed Services Employment and Reemployment Rights Act (USERRA) require that an employee receive pension credit while absent to perform military service?

If a person has been absent for military service for 91 or more days, an employer may delay treating the person as not having incurred a break in service for pension purposes until the person submits satisfactory documentation establishing reemployment eligibility. However, such contributions have to be made promptly for persons who are absent for 90 or fewer days. (Section 4312 (f) (3) (B).)

Pension plans (Section 4318), which are tied to seniority, are given separate, detailed treatment under the law. The law provides that:

  • A reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan
  • Military service must be considered service with an employer for vesting and benefit accrual purposes.
  • The employer is liable for funding any obligation of the plan to provide required benefits.
  • The reemployed person is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions.

A “pension plan” that must comply with the requirements of the reemployment law would be any plan that provided retirement income to employees upon the termination of employment or later. Defined benefit plans, defined contribution plans, and profit-sharing plans that re retirement plans are covered.



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