The Law Office of Richard Vaznaugh

Experts in Workplace Rights for Bay Area Workers

The Law Office of Richard Vaznaugh
505 Sansome Street
Suite 850
San Francisco, CA 94111
Phone: (415) 593-0076
Fax: (415) 653-8935

Vaznaugh Weekly

Topic of the Week  Military Leave

  • I have been activated to military service. What happens to my current job when I leave to fulfill my military obligation?
  • What job entitlements or protections does USERRA offer?
  • What happens to my job while I am on military leave?
I have been activated to military service. What happens to my current job when I leave to fulfill my military obligation?

To minimize the disadvantages that occur when workers need to be absent from their civilian employment to serve in this country's uniformed services, there is a federal law that provides for:

 reemployment rights

 health insurance protection

 the right to be free from discrimination and retaliation on the basis of military service


What job entitlements or protections does USERRA offer?

USERRA provides for four basic entitlements (if the eligibility criteria listed in the previous question are met):

 Prompt reinstatement (as soon as possible, but no longer than two weeks)).

 Accrued seniority as if continuously employed.

 Training or retraining and other accommodations, which may be critical in case of a long period of absence or service-connected disability.

 Special protection against discharge after reemployment, except for cause. The period of this protection is either 180 days from the date of reemployment (following periods of service of 31-180 days) or one year from the date of reemployment(for periods of service of 181 days or more.)

What happens to my job while I am on military leave?

When you return from military service, you must be reemployed in the job that you would have had if you had not been absent for military service (known as the "escalator" principle) and with the same seniority, status and pay, as well as other rights and benefits determined by seniority. The escalator principle requires that each returning service member actually step back onto the seniority "escalator" at the point the person would have occupied if the person had remained continuously employed.

The position may not necessarily be the same job you previously held. For instance, if you would have been promoted with reasonable certainty had you not been absent, you would be entitled to that promotion upon reinstatement. On the other hand, the position could be at a lower level than the one you held previously, it could be a different job, or it could conceivably be in layoff status.

Reasonable efforts must be made to enable you to refresh or upgrade your skills so that you can qualify for reemployment. Employers must provide refresher training, and any training necessary to update your skills in a situation where you are no longer qualified for the job due to technological advances. Training will not be required if it is an undue hardship for the employer.

If refresher training is not successful, USERRA provides that you must be reinstated in a position that most nearly approximates the position you originally held. If you are disabled (temporarily or permanently) due to military service, you must also be accommodated in a position most nearly approximating your original position.


 

Thought of the Week

"This year, we celebrate the 25th anniversary of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), a fundamental support to our all-volunteer force. With roots dating back to World War II, USERRA became law on Oct. 13, 1994, and has helped to build a more robust reserve component, enabling the world’s strongest military to be economically efficient and deeply woven into the fabric of American community life. USERRA strengthened and formalized economic protections that enable all service members’ careers to progress, without pause, while serving our nation."

–Jonathan VanderPlas; Military Times

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Top Five News Headlines

    List of the Week

    from DOL: Veterans' Employment & Training Service

    Employment Situation of Veterans

    • The jobless rate for all veterans fell to an 18-year low of 3.5% in 2018, from its peak at 9.9% in 2011
    • The unemployment rate for women veterans fell to 3.0 percent in 2018
    • October 2019, the veteran unemployment rate remained at 3.2 percent, the same rate as last month

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