USERRA requires employers to reemploy an eligible returning service member into the position and benefits the service member would have had, with reasonable certainty, if not for the military service. "Other Workplace Standards: Reemployment and Nondiscrimination Rights for Uniformed Services Members." The service member, who receives pension contributions based on a percentage of compensation earned, is guaranteed to be paid for 75 hours per month. Since the service member returned from a one-year deployment six months ago, the first six months of the previous 12-month period should not be considered, and the subsequent six months should be averaged to determine the average rate of compensation for the two-week absence. .h1 {font-family:'Merriweather';font-weight:700;} I maintain a pension plan in which employee compensation determines the amount of the employee's contribution or the retirement benefit to which the employee is entitled. Is the pension plan I maintain for my employees covered by USERRA? However, if the service member was scheduled to work 40 hours per week, but consistently worked 50 hours per week prior to the military-related absence, it is reasonably certain that the service member would have worked 50 hours per week if not for the period of service. For employer contributions to a plan in which employees are not required or permitted to contribute, the employer must make the contribution attributable to the reemployed service member’s military-related absence no later than ninety days after the date of reemployment, or when plan contributions are normally due for the year in which the military service was performed, whichever is later. My employee is currently absent from work for military service. 38 U.S.C. USERRA requires your employer to provide you with reasonable accommodations if you incur any service-related disabilities regardless of whether the disability would be protected under the ADA (Americans with Disabilities Act) or its California counterpart, the FEHA (Fair Employment and Housing Act). If it is impossible or unreasonable for the employer to make the contribution within this time period, the employer must make the contribution as soon as practicable. Promptness generally depends on the time the employee was away and can range from the next day after retuning from duty to up to fourteen (14) days. Uniformed Services Employment and Reemployment Rights Act (USERRA) Fact Sheet The Uniformed Services Employment and Reemployment Rights Act (USERRA), enacted October 1994 and significantly updated in 1996 and 1998, provides job protection and rights of reinstatement to employees who participate in the National Guard and Reserve. How should pension contributions be calculated for the one-month absence? § 1002.259. 6323(a) is prorated for part-time career employees and employees on an uncommon tour of duty. How do I determine a reemployed service member's pension entitlement? If the person was injured or became ill during service, the deadline is extended up to two years. 2. 38 U.S.C. For employer contributions to a plan that provides for both employer and employee contributions, please see the next question. This will cover guidelines on retirement plan obligations from employers to … Francis Perkins Building ol{list-style-type: decimal;} Accessed May 13, 2020. #block-opa-theme-content > div > div.guidance-search > div.csv-feed.views-data-export-feed {display:none;} The service member has been working at the place of employment for ten years. § 4318 (a) (1) (A); 20 C.F.R. For the previous eight months, the service member has worked for 80 hours per month.  Employers are required to provide notice of the rights and benefits provided under USERRA  Employers should have a policy or section in their Employee Handbook offering guidance regarding Military Leave requests What are the potential penalties? .manual-search-block #edit-actions--2 {order:2;} The service member has been working at the place of employment for six years but returned from a one year deployment six months ago. 20 C.F.R. U.S. Department of Labor. The fact sheet provides practical guidance on how employers should administer their retirement plans when an employee takes USERRA leave. U.S. Department of Labor. § 1002.262(a). Before sharing sensitive information, make sure you’re on a federal government site. This COVID-19 Impact Fact Sheet answers questions about specific circumstances relating to National Guard and Reserve service during the coronavirus crisis. § 4318(b)(3)(A).   USERRA creates certain rights and protections for uniformed service members. This article is a general overview of the USERRA law and your responsibilities as an employer. Section 4312 (e) (2) (A) / 20 CFR 1002.116. § 1002.262(c). You may not retaliate against or discriminate against an employee who files a claim under the USERRA.. Department of Labor Non-Technical Guide to USERRA* ESGR Questions and Answers for Employers and Employees Who Participate in the National Guard and Reserve* ESGR’s Frequently Asked Questions on USERRA - plain language codification of USERRA * Reserve Officers Association* Department of Labor USERRA Poster* USERRA. Employers must protect the rights of service members during the hiring process, in requesting leaves, and in returning from leaves.. § 1002.260. 38 U.S.C. The service member goes out on orders for three years. Had the service member been continuously employed, it appears reasonably certain that he would have worked 80 hours per month, as he has done the previous eight months. USERRA covers any plan, other than the federal government's Thrift Savings Plan, that provides retirement income to employees or that defers payment of income to employees until after employment has ended. is the federal law that establishes rights and responsibilities for members of the Guard and Reserve and their civilian employers. 20 C.F.R. Some of USERRA's basic requirements include (but are not limited to): Establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} USERRA requires employers to provide reemployed servicemembers with pension benefits under covered plans (including 401 (k) plans) as if the servicemember had not left for military service. § 4318(b)(3)(B). Any employer contributions that are contingent on or attributable to the service member's make-up contributions or elective deferrals must be made according to the plan's requirements for employer matching contributions. 10. #block-googletagmanagerheader .field { padding-bottom:0 !important; } The service member consistently works 40 hours per week but earns commission based on sales, and the commission earned each week varies. In order to determine the rate of compensation a service member would have received, an employer must analyze how many hours the service member likely would have worked and how much the service member would have earned based on the service member's work history leading up to the military-related absence. 20 C.F.R. Congress provided the statutory authority for investi-gating alleged violations of USERRA to the Department of Labor (DoL). § 4318(b)(2). An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation. 4301-4335 from adverse employment discrimination on the basis of their uniformed service, and provides for their prompt restoration to civilian employment when they return to civilian life. Employers are not required to make pension contributions until the service member­ employee returns to work. The service member consistently works 40 hours per week but earns commission based on sales. Employer Support of the Guard and Reserve. Additionally, (1) time spent in preparation for military service, and (2) post-service time "within which a person may apply for reemployment and/or recover from an illness or injury incurred or aggravated by the military service" must be treated as continuous employment. 38 U.S.C. DOL-VETS Fact Sheet on USERRA Gets the Five-Year Limit Wrong By Captain Samuel F. Wright, JAGC, USN (Ret. See the examples below for further explanation. § 4318(a)(1)(A); 20 C.F.R. § 1002.260. By using The Balance Small Business, you accept our. USERRA Law Protecting Service Members: A Guide for Employers. 8. The service member has been working at the place of employment for two years. See the U.S. Department of Labor USERRA Advisor elaws for more details. Hey Compliance Warriors, On August 9th 2019 the DOL issued USERRA fact sheet 1. The service member's reemployment escalator position is a promoted position earning a higher rate of pay than the service member previously received before deployment. Protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Uniformed Services Employment and Reemployment Rights Act (USERRA), USERRA - Uniformed Services Employment and Reemployment Rights Act, Severe Storm and Flood Recovery Assistance. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Each week, the service member's commission is different. Accessed May 13, 2020. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. To make this calculation, the employer must determine the rate or rates of compensation the service member would have received but for the military-related absence. Therefore, employers are required to determine a reemployed service member's eligibility for participation in a pension plan and the vesting and accrual of the service member's pension benefits as if the service member had not left for military service. .manual-search ul.usa-list li {max-width:100%;} Washington, DC 20210, An agency within the U.S. Department of Labor, 200 Constitution Ave NW The Balance Small Business uses cookies to provide you with a great user experience. After only six weeks at the place of employment, the service member is absent for one week as a result of military service. Pension benefits should be determined based on the rate the reemployed service member would have earned but for the period of military service, if that rate can be determined with reasonable certainty. However, they are not required to do so. 200 Constitution Ave. NW Washington DC 20210 1-866-4-US-WAGE 1-866-487-9243 TTY www.dol.gov . .usa-footer .grid-container {padding-left: 30px!important;} An employee who is returning from military service is eligible for reemployment if they meet the following criteria: The returning employee must apply to your company for reemployment within a specific time, depending on their length of military service. On August 9, 2019, the Department of Labor (“DOL”) issued USERRA Fact Sheet 1, providing guidance to employers about their pension obligations to … The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that guarantees employment rights to members of the military, both active and reserve. You must release an employee if they give you advance notice that they have been called to military service. "E Laws USERRA Advisor – Pay and Raises." Section 4313 (a) (1) (A) & (B) / 20 CFR 1002.196. USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service, which includes the Armed Forces (active and reserve), the National Guard, the Public Health Service, and certain types of service in the National Disaster Medical System. U.S. Department of Labor, Veteran's Employment & Training Service. The commission earned each week varies, therefore, the service member's rate of compensation she would have earned if not for her military-related absence is not reasonably certain. The VETS USERRA Fact Sheet #1: Frequently Asked Questions-Employers’ Pension Obligations to Reemployed Service Members under USERRA provides quick and direct guidance to employers and employees in a readily understandable format concerning the application of USERRA to employers that pay pension benefits as a percentage of total earnings of employees. The Department of Labor's Veterans Employment and Training Services (VETS) issued a new fact sheet to help employers better manage their pension obligations under the Uniform Services Employment and Reemployment Rights Act (USERRA). § 4318(b)(3)(A). 1. USERRA Advisor; USERRA Advisor Please select from the following: Specific USERRA issues ; General overview of USERRA ; UNITED STATES DEPARTMENT OF LABOR . The Fact Sheet also includes a toll-free information and … You may be asked to participate in an informal session with an ombudsman. The employee doesn’t have to tell you if they want to come back to work after their service, and they don’t forfeit their right to coming back even if they tell you when they are leaving that they don’t plan to return., Returning service members keep their USERRA rights for a cumulative period of up to five years of service. Therefore, after reemployment, the service member's pension contributions should be calculated based on working 80 hours per month. 20 C.F.R. USERRA protects civilian job rights and benefits for veterans and members of Reserve components. The service member, who receives pension contributions based on a percentage of compensation earned, works 40 hours per week and earns base pay plus commission based on sales. "USERRA: A Guide to the Uniformed Services Employment and Reemployment Rights Act." Follow the same procedures as outlined in response to question 8. § 1002.262. A reemployed service member's makeup payments may be made starting on the date of reemployment for a period that is three times the duration of the service member's military service, but not to exceed five years. How should pension contributions be calculated for the one-week absence? Therefore, after reemployment, the service member's pension contributions should be calculated based on the 50 hours of work per week (and applicable overtime pay) she would have worked if not for the two-week absence. 20 C.F.R. What Employees and Employers Are Included? What are my pension obligations to this employee under USERRA? The USERRA covers almost everyone in the U.S. who is serving or has served in the uniformed services. The service member, who receives pension contributions based on a percentage of compensation earned, is always scheduled to work 40 hours a week. But it’s more complicated than that. How the Coronavirus Pandemic Has Affected Key Employment Laws. The service member's pension contributions should be calculated taking into account the point in time there's reasonable certainty that the promotion occurred. 20 C.F.R. be made directly to the employer, who should contact the supplemental plan administrator for instructions on how to process and report these Then, you must promptly reemploy the person in a specific priority order based on their previous position and qualifications.. You may have heard that if an employee asks for leave for military service, you must “hold their job” for them when they return. "USERRA Overview." My employee was absent from work due to military service and has now returned to work. USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. However, for the nine weeks prior to her military-related absence, the service member worked 50 hours a week and earned overtime pay for the additional hours above 40 hours. USERRA covers employment, reemploy-ment and retention rights when employees serve in the uniformed Services.  Reinstatement  Back pay  Liquidated damages  Attorneys’ fees Military leave under 5 U.S.C. How should pension contributions be calculated for the one-month absence? A reemployed service member may make up all or part of their missed contributions or elective deferrals. How do I determine the amount a reemployed service member is permitted or required to contribute? Any full-time Federal civilian employee whose appointment is not limited to 1 year is entitled to military leave. After reemployment, pension contributions for the two-year absence should be calculated based on the average of the service member's compensation earned in the previous 12-month period. USERRA applies to members of the Armed Services, Reserves, National Guard, and other “Uniformed Services,” including the National Disaster Medical System and the Commissioned Corps of the Public Health Service.. Washington, DC 20210 #block-googletagmanagerfooter .field { padding-bottom:0 !important; } No. The service member's hours during the six weeks of employment prior to military-related absence have been variable, therefore, her rate of pay has been variable. Guard & Reserve Links. What Is OSHA and How Does It Affect Your Business? U.S. Department of Labor Accessed May 13, 2020. .agency-blurb-container .agency_blurb.background--light { padding: 0; } 38 U.S.C. § 4318(b)(2). § 1002.259; see also 38 U.S.C. Accessed May 13, 2020. 2. Are there any limitations on a service member's ability to make up payments to a pension plan that were missed during military-related absence? If the service member consistently worked 40 hours per week prior to the military-related absence, it is reasonably certain that the service member would have worked 40 hours per week if not for the period of service. However, the number of hours the service member works each week is variable. "Period of Service." CQ: U.S. Department of Labor. § 4318; 20 C.F.R. How should pension contributions be calculated for the two-week absence? §§ 4312, 4316(a), 4318; 20 C.F.R. Although every attempt at accuracy is made, it cannot be guaranteed. USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve. Generally, the returning employee is entitled to vesting, eligibility, and benefit service credit for the entire period of the absence. Federal government websites often end in .gov or .mil. "Employment and Reemployment Rights Act." "VETS USERRA Fact Sheet 3." http:///www.dol.gov/vets/programs/userra and/or call our toll-free information and helpline, available 8:00am to 8:00pm (Eastern Time), at 1-866-4-USA-DOL (1-866-487-2365). 20 C.F.R. If a pension plan is contributory, the employer is required to make contributions that are contingent on a reemployed service member's contributions or elective deferrals only to the extent that the service member makes up those payments to the plan. The number of hours the service member works each week is variable, therefore, the service member's rate of pay is variable, and the amount of compensation the service member would have received if not for her military-related absence is not reasonably certain. 7. Fact Sheet for USERRA The following link will take you to a Fact Sheet regarding key requirements for the Uniformed Services Employment and Reemployment Rights Act. What period of an employee's military-related absence must I treat as continuous employment for purposes of determining pension benefits? Each week, the service member's commission is different. 3. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is the Federal law that establishes rights and responsibilities for members of the National Guard and Reserve and their civilian employers. 75,246, 75,280 (Dec. 19, 2005); see also 20 C.F.R. "Frequently Asked Questions." 38 U.S.C. The service member goes out on orders for one month. The employee is also entitled, upon reemployment, to all benefit accruals that are not conditioned on employee contributions or deferr… While this fact sheet is directed to civilian employers of members of the National Disaster Medical System, it should be noted that Active component members, Therefore, for pension purposes, a reemployed service member's rate of compensation for a period of military-related absence should be based on 40 hours per week, right? Since its enactment in 1994, USERRA has provided that employees who return to employment with USERRA reemployment rights are entitled to service and certain retirement benefit accruals for their period of absence to perform military service. An official website of the United States government. The returning service person has specific benefit rights on their return to work: These pay and benefits requirements can be complicated. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} She has written for The Balance on U.S. business law and taxes since 2008. employers. Cornell Legal Information Institute. No makeup payment may exceed the amount the service member would have been permitted or required to contribute had they remained continuously employed. Additionally, if the service member was scheduled to work 40 hours per week, but the number of hours worked varied each week, then the rate of pay the service member would have received if not for the period of service is not reasonably certain. Electronic Code of Federal Regulations. In this case, the rate of pay must be calculated based on the average rate of compensation the service member earned during the 12-month period preceding the military-related absence. If you have questions, you can search the Veterans’ Employment and Training Service (VETS) website or contact them at contact-vets@dol.gov or phone: 1-866-4USADOL (1-866-487-2365) or 1-202-693-4770. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment. Jean Murray, MBA, Ph.D., is an experienced business writer and teacher. ABOUT THE SITE. [CDATA[/* >