MightyRecruiterCitizens across the country owe a great debt of gratitude to the brave men and women willing to serve in the military. Given the importance of the service that they render, those who employ members of the military are more than happy to accommodate them when they need to leave for active duty. At the same time, they need to consider what the impact that not having the service of those employees will have, and what needs to be done when they return and wish to return to their job. The Uniformed Services and Employment and Reemployment Act spells out the requirements of employers in incorporating returning servicemen and women back into their companies. If you happen to employ service members, you’ll want to become familiar with what those are.
USERRA Qualifications
An important part of understanding USERRA is knowing exactly whether or not the servicemen and women that you employ actually qualify for its protections. To be eligible for reemployment after active duty service, the following criteria must be meet.
“Advanced notification: Your servicemember employee must give you advance notice of his or her upcoming deployment or active duty assignment. While the terms of USERRA don’t place a specific time requirement on this notice, it does require it to be “as reasonable under the circumstances.”
“Time away: To qualify for reemployment at the standard set by USERRA, the employee must return to work within five years of the commencement of his or her military obligation.
“Status of service discharge: If your servicemember employee is returning to you after having been discharged from his or her military, you are only required to adhere to the terms of USERRA if his or her discharge was under honorable terms.
“Time window for return: A military member returning to work following active duty must do so within a certain time in order for USERRA to apply. These return window requirements depend upon the length of his or her service and are broken down as follows:
o Less than 30 days: The next working day following return travel and adequate rest
o 31-180 days: Within 14 days of return from service
o Greater than 181 days: Within 90 days of return from service
Exceptions to the Five-Year Reemployment Window
In certain scenarios, the terms of USERRA may require you to extend the previously-mentioned five-year reemployment window. These include cases where your servicemember employee is pressed into duty in a time of war or national emergency, or if his or her unique military role calls for an extended deployment. If, after returning, your employee requires retraining to qualify for reemployment, and that training causes him of her to exceed the five-year time limit, you are still expected to offer employments benefits guaranteed through USERRA. However, if your employee is unable to obtain the necessary paperwork discharging him or her from service within the allotted five-year window, you don’t have to offer him or her reemployment. In this scenario, you’re relieved of this obligation due to the fact that the delay was not your fault.
Determining Criteria for Independent Contractors
If you had a stipulated agreement with a servicemember that your working relationship was as an independent contractor and not a standard, then the terms set forth by USERRA may not apply. However, don’t be surprised if that employment status is challenged. In doing so, authorities will review the impact that the serviceman or woman’s service had on your operations, as well as the degree over which you controlled his or her work. They may also look at whether or not you supplied him or her with the standard tools of your trade, or whether he or she used his or her own. While you want to do all that you can to accommodate your servicemember employees, you also need to ensure that your company’s operations are not slowed by any restrictions that the terms of USERRA may place on you. Understanding what the exceptions are to your requirements for reemployment will help you maintain your current productivity, whether it’s with the support of your servicemember employees or not.
Legal Disclaimer
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.