When Soldiers Come Marching Home

Understanding federal regulations helps employers ease the transition back to the workplace.

Many manufacturers had to adjust quickly when valuable employees who are also National Guardsmen were called up to serve during the Iraqi conflict. As they return from their tours of duty, new questions arise: What are the responsibilities of employers to these returning men and women? The answers are found in the Uniformed Services Employment and Reemployment Rights Act (USERRA), enacted in 1994 and updated several times since then. "It comes down to treating the person as though they had never, ever left," explains John Wirtshafter, an employee benefits attorney with McDonald Hopkins Co. LPA, Cleveland. In short, that means placing the employee in the position and pay he would have held had he been continuously employed, including any promotions or raises that would have occurred had the worker not been absent. In the case of military service that exceeds 90 days, the position to which an employee is reinstated may also be one that offers "like" seniority, status and pay to the position he would have held if continuously employed. Additionally, firms must reinstate employees to the company's health-coverage plan without a waiting period for pre-existing conditions. In addition, USERRA protects the vesting rights of employees on military leave. It requires employers to credit pension plans as though workers were continually present, and, for companies with 401K plans, allows returning employees to make up any missed contributions and then requires firms to match those as per the company plan. The law applies equally to full-time and part-time civilian employees, as long as the position is permanent. In general it extends to employees whose cumulative military duty does not exceed five years. Understandably, the relatively new act raises questions among human resource personnel. In fact, questions regarding military leave are among the "top 10" fielded by the Information Center for the Society for Human Resource Management, Alexandria, Va., says Director Deborah Keary. Like many regulations, there are exceptions and caveats to nearly every rule. The regulation does include exemptions under which a company would not have to rehire a worker returning from military leave, including showing that the reemployment would prove "an undue hardship" on the firm. However, "unlike a lot of federal acts, there is no exception for [company] size," notes Wirtshafter. Small companies are equally bound as larger ones.

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