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The war in Iraq and the call up of thousands of reservists has focused attention on the employment rights of those who leave their civilian jobs for active military duty. The good news is that a law addresses most aspects of the return to work life for honorably discharged personnel, including reentering the work force at the same position, as well as both continuous pension contributions and seniority for time spent in the service.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 was enacted by Congress to ensure that anyone serving in the military-including enlistees and reservists-can return to civilian employment without paying any penalty for time spent serving their country.

The IBEW counts 452 members among those in active service now, but those are a fraction of the number that USERRA's rules may affect, because the law is basically an updated version of similar laws that have been in effect since 1940. USERRA's pension rules in particular may apply to any member who served from World War II through the present conflicts in Iraq and Afghanistan.

"USERRA provides substantial benefits for returning service members, but it also imposes substantial obligations on the veterans," said Nora Leyland, attorney with IBEW counsel Sherman, Dunn, Cohen, Leifer and Yellig. "Many IBEW members and their employers and local unions may not be fully aware of veterans' rights and responsibilities under USERRA."

It is important to note that, if a collective bargaining agreement offers benefits to service members that are better than what USERRA provides, the service member remains entitled to the benefits under the collective bargaining agreement.

The law's anti-discrimination coverage prohibits any act of employment-related discrimination motivated by past, present or future military obligations. It applies to every employer and every form of military service, including reserve, full-time and involuntary active duty.

Eligibility Criteria Service members must meet five simple criteria to be eligible for USERRA's re-employment entitlements:

1. They must leave civilian employment for the purpose of engaging in military service.

2. They must give the employer prior notice (oral or written) that the absence will be due to military service.

3. They may claim USERRA benefits for military absences not to exceed five years, per employer.

4. The employee must not be released from military service under punitive or other-than-honorable conditions.

5. The worker must return to the same civilian employer within a certain amount of time, depending on the length of time the employee was absent. If the absence is less than 31 days, the employee must return on the next working day, allowing enough time for a safe return and 8 hours of rest; if gone for more than 30, but less than 181 days, the employee has 14 days to return; if gone for more than 180 days, the employee has 90 days to return. The "notice" of return does not have to be in writing, but written notice is generally good protection for employees gone for more than 30 days.

The IBEW also issues military service cards to members when they enter service for the first time or are recalled to service, and requires members to deposit the card back with the local within 60 days of return.

Entitlements

Even before the service member returns and satisfies all eligibility criteria, he or she is entitled to two types of benefits, if adequate notice is given and the five-year limit is not exceeded. They include:

1. Health Care Employees absent less than 31 days may elect to continue under the employer's health care plan at no additional cost to the employee. After 30 days, the employee may elect to carry the employer's coverage for up to 18 months total, including the initial 30 days. After the first 30 days, the employer can charge the employee up to 102% of the cost of the coverage.

2. Benefits Given to Others on Leaves of Absence If the employer gives any non-seniority based benefits, for example, a holiday bonus, or the opportunity to continue term life insurance coverage, to any employees on leaves of absence, it must offer the same benefits to the absent service member.

Once the employee returns and meets all eligibility criteria, he or she is entitled to substantial reemployment benefits.

1. Prompt Reinstatement The employee must be promptly reinstated in the appropriate job, regardless of whether or not another worker has to be displaced as a result.

2. Continuous Accumulation of Seniority The employer is required to credit the employee with all time absent from the job and to accord him or her any seniority, as well as rights and benefits that the service member would have earned on the basis of seniority, if not for the military duty absence. This is called the "escalator" principle.

3. Preservation of Status The employer must also afford the worker the same status he or she would have attained if continuously employed. Status includes general working conditions, opportunities for advancement, job location, shift, rank and level of responsibility.

4. Retirement Benefits USERRA's retirement provisions are among the most vital of its protections. The law applies to any pension plan that provides retirement income as a reward for length of service, including traditional pension plans, 401(k) plans and profit sharing plans. Military service must be treated as service with the employer for both vesting and benefit accrual purposes. Once the service member returns, the employer must fund all required employer contributions for the entire length of military service. In cases where employees make contributions to a retirement plan, USERRA also protects the employee's right to make up any contributions he or she missed while absent for military service and allows for a repayment period three times the length of actual absence, up to a maximum of five years. Other reinstatement benefits include: (5) the same, or equivalent, "escalator" job; (6) protection against termination, except for cause, for a specified period of time following military service; (7) retraining to qualify for the "escalator" job; and (8) accommodation for military-caused or aggravated disabilities.

USERRA also applies to employees referred for employment to contractors though hiring halls operated by local unions. Because is it easier for proper notices to be missed under these circumstances, it is a good idea for IBEW members referred by hiring halls to give notice of departure for military service, and notice of the member's return to all of the following: (1) the union hiring hall; (2) the particular contractor he or she leaves, and the first contractor to which the member is referred when he or she returns; and (3) all benefit funds (health and pension, etc.).

Enforcement

If the employer fails to uphold its responsibilities under the law, workers may obtain an order requiring it to comply with USERRA, for example, by reinstating him or her to the appropriate job, or make up missing pension contributions. An employee may receive compensatory damages for lost wages or benefits, and may recover litigation costs and attorney's fees if he or she prevails, but cannot be held liable for the employer's costs if unsuccessful.

Informal assistance on USERRA's provisions is available for both employers and employees. Funded by the U.S. Department of Defense, the National Committee for Employer Support of the Guard and Reserve (NCESGR) is a volunteer group that assists returning service members and employers by providing information as well as informal mediation services. NCESGR's phone number is 1-800-336-4590 and its web site address is www.esgr.com.

THE LAW'S ANTI-DISCRIMINATION COVERAGE PROHIBITS ANY ACT OF EMPLOYMENT-RELATED DISCRIMINATION MOTIVATED BY PAST, PRESENT OR FUTURE MILITARY OBLIGATIONS.S ANTI-DISCRIMINATION COVERAGE PROHIBITS ANY ACT OF EMPLOYMENT-RELATED DISCRIMINATION MOTIVATED BY PAST, PRESENT OR FUTURE MILITARY OBLIGATIONS.

January/February 2004 IBEW Journal