The Uniformed Services Employment and Reemployment Rights Act affects 401(k)s, reinstatement rights, and several other employment issues. Employers’ main concerns about complying with the act show up in four key questions.
The questions, and their answers, from the law firm of Vedder Price:
1. 401(k) contributions
Q: An employee who recently returned from leave has inquired about the status of his 401(k) account and the contributions to it during the military service. What obligations do we have in that area?
A: Employers aren’t required to make contributions during an employee’s military service. Upon reemployment, an employee has up to three times the period of the military service (but not more than five years) to make up missed contributions.
2. Reinstatement rights
Q: An employee on military leave will be returning shortly. Are we complying with USERRA if we simply return him to the position he left?
A: Not necessarily. First, it is important to remember that, barring exceptional circumstances such as a layoff that eliminated the individual’s position, the employee has an absolute right to reinstatement. If a temporary replacement was hired, you must either reassign or terminate that person and reinstate the service member to his or her original position. You cannot give them a merely comparable position if that position involves different job duties or puts them in a less advantageous situation as far as promotion opportunities and the like.
And don’t forget USERRA’s “escalator principle.” It mandates that the employer must make an effort to determine the position, pay and benefits the service member would have attained if he had not been absent for service. In some cases, the employee may be entitled to a promotion or pay increase upon return.
Every situation is unique. In some cases, you must provide the employee with a window of time for him or her to complete the necessary training or coursework required for the promotion.
3. Volunteers
Q: We have an employee who volunteered for additional military training. Is that person protected by USERRA?
A: Yes. USERRA covers all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war. USERRA protects members of the National Guard, reserve military personnel and persons serving in the active components of the Armed Forces. Certain members of the National Disaster Medical System are covered by USERRA, too.
4. Substituting other leave
Q: Can we require an employee to substitute paid leave for military leave?
A: No. USERRA forbids an employer from requiring an employee to use his vacation, annual, or similar leave during such period of military service. The employee is permitted, but not required, to request that military service be classified by the employer as paid vacation, annual or similar leave.
