OSC receives cases from the Department of Labor that may be appropriate for litigation. The Department of Labor will inform claimants of their right of referral to OSC at the end of its own investigation. ESGR is an agency within the Department of Defense established expressly to help resolve these kinds of issues. You may be trying to access this site from a secured browser on the server.
Please enable scripts and reload this page. Turn on more accessible mode. Turn off more accessible mode. Employee Rights and Benefits. Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed.
A right or benefit is seniority-based if it is determined by or accrues with length of employment. On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is made available without regard to length of employment. During a period of service, the employees must be treated as if they are on a furlough or leave of absence. Consequently, during their period of service they are entitled to participate in any rights and benefits not based on seniority that are available to employees on comparable nonmilitary leaves of absence, whether paid or unpaid.
If there is a variation in benefits among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. Employees are entitled not only to nonseniority rights and benefits available at the time they left for military service, but also those that become effective during their service and that are provided to similarly situated employees on furlough or leave of absence.
If, prior to leaving for military service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not based on seniority.
At the time of providing the notice, the employee must be aware of the specific rights and benefits to be lost. The employer bears the burden of proving that the person knowingly waived entitlement to the specific rights and benefits. A notice of intent not to return can waive only leave-of-absence rights and benefits.
It cannot surrender other rights and benefits that a person would be entitled to under the law, particularly reemployment rights after service. Service members may be required to pay the employee cost, if any, of any funded benefit to the extent that other employees on leave of absence are so required. Pension plans Section , which are tied to seniority, are given separate, detailed treatment under the law.
The law provides that:. Defined benefit plans, defined contribution plans, and profit-sharing plans that are retirement plans are covered. In a multi-employer pension plan, the sponsor maintaining the plan may allocate the liability of the plan for pension benefits accrued by persons who are absent for military service. If no allocation or cost-sharing arrangement is provided, the full liability to make the retroactive contributions to the plan will be allocated to the last employer employing the person before the period of military service or, if that employer is no longer functional, to the overall plan.
Section c. Repayment of employee contributions or elective deferrals attributable to the period of service can be made over three times the period of military service but no longer than five years from the date of reemployment. Service members must, at their request, be permitted to use any vacation leave that had accrued before the beginning of their military service instead of unpaid leave.
However, service members cannot be forced to use vacation time for military service. The law provides for health benefits continuation for persons who have coverage under a health plan in connection with their employment who are absent from work to serve in the military. The person cannot be required to pay more than percent of the full premium for the coverage.
If the military service was for 30 or fewer days, the person cannot be required to pay more than the normal employee share of any premium. Protection from Discharge. Cause for discharge may be based on conduct or the application of legitimate nondiscriminatory reasons.
Persons who serve for 30 or fewer days are not protected from discharge without cause. However, they are protected from discrimination because of military service or obligation. Protection from Discrimination and Retaliation.
Section a. Employment discrimination because of past, current, or future military obligations is prohibited. The ban is broad, extending to most areas of employment, including:. The law prohibits discrimination against past members, current members, and persons who apply to be a member of any of the branches of the uniformed services. Employers are prohibited from retaliating against anyone whether or not they have performed military service who:.
How the Law is Enforced. VETS investigates complaints and attempts to resolve them. Filing of complaints with VETS is optional; the employee may freely choose to pursue a claim with private counsel Section The law gives VETS a right of access to examine and duplicate any documents that it considers relevant to an investigation.
VETS also has the right of reasonable access to interview any persons with information relevant to the investigation. The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation.
Persons whose complaints against a private employer or a State or Local Government are not successfully resolved by VETS may request that their complaints be referred to the Attorney General for possible representation. Individuals have the option to privately file court actions.
No court fees or costs may be charged to anyone who brings suit. Employers, regardless of size, are required to provide to persons entitled to the rights and benefits under USERRA, a notice of their rights, benefits and obligations. Employers are also free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided e. Did you hold a job other than one that was brief, nonrecurring?
Exception would be discrimination cases. Did you notify the employer that you would be leaving the job for military training or service? See: Advance Notice 3. Did you exceed the 5-year limit on periods of service? Exclude exceptions identified in the law. See: Duration of Service 4. Were you discharged under conditions other than disqualifying under section ? See: Disqualifying Service 5.
Did you make an application or report back to the pre-service employer in a timely manner? See: Reporting Back to Work 6. When requested by your employer, did you provide readily available documentation showing eligibility for reemployment? A person shall, upon the completion of a period of service in the uniformed services, notify the employer referred to in such subsection of the person's intent to return to a position of employment with such employer as follows:.
A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer or submit an application for reemployment with such employer.
Such period of recovery may not exceed two years. Such two-year period shall be extended by the minimum time required to accommodate the circumstances beyond such person's control which make reporting within the period impossible or unreasonable.
A person who fails to report or apply for employment or reemployment within the appropriate period specified in this subsection shall not automatically forfeit such person's entitlement to the rights and benefits but shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.
A person who submits an application for reemployment shall provide to the person's employer upon the request of such employer documentation to establish that:. Documentation of any matter referred to in paragraph 1 that satisfies regulations prescribed by the Secretary shall satisfy the documentation requirements in such paragraph. Except as provided above, the failure of a person to provide documentation that satisfies regulations shall not be a basis for denying reemployment in accordance with the provisions of this chapter if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the employer.
If, after such reemployment, documentation becomes available that establishes that such person does not meet one or more of the requirements,the employer of such person may terminate the employment of the person and the provision of any rights or benefits afforded the person. An employer who reemploys a person absent from a position of employment for more than 90 days may require that the person provide the employer with the documentation before beginning to treat the person as not having incurred a break in service for pension purposes.
An employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available.
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