Keys to Compliance with Employment Rights Law.

• Author: Lorek, Jeffrey J.
• Position: Ethics Corner

The Uniformed Services Employment and Reemployment Rights Act of 1994 was enacted to help protect military service members from employment discrimination or disadvantages with civilian employers. It is challenging to navigate but compliance can be simplified by categorizing key events in the law's lifecycle and creating a plan that addresses each step of the way.

The legislation protects the reemployment rights of uniformed service members called to active duty, generally for up to five years, subject to certain exceptions. Keeping a compliance plan intact and repeating the same process in every case will help create a smooth, standardized compliance rhythm that can minimize the risk of a service member's complaint and subsequent Department of Labor investigation.

Advance notice is an important first step. Under USERRA, the employee is obligated to provide advance notice to the employer of his or her upcoming service-related absence. There is no timeframe required, but 30 days is recommended. It is also acceptable for a military superior to notify the employer on the employee's behalf

The employee must identify the expected duration of the absence. Exceptions to the advance notice requirement are rare, but they exist for military necessity (e.g., a classified mission) or when it's otherwise impossible or impracticable to properly notify the employer.

After being informed of the service member's upcoming absence, the employer must provide the employee with a notice outlining his or her USERRA rights. A rights poster can be obtained here: https://www.dol.gov/vets/programs/userra/USERRA_Private.pdf.

The employer then begins maintaining records concerning the service member's protected absence. Human resources should document the absence and begin monitoring and tracking accrual of seniority, leave accrual rates, promotions, pay and bonuses, and any other incidental benefits that any ordinary employee would accrue over time.

While gone, the employee's only obligation is to perform qualifying military service. Meanwhile, the employer's obligation is to credit the service member with seniority, status and pay in the same manner as any other employee who is on furlough or leave of absence. An employer's promotion plans must provide a mechanism to capture those employees who are absent because of military obligations.

After returning home, the employee must timely report back for work. Timeframes vary depending on the length of absence. If the...