The Uniformed Services Employment and Reemployment Rights Act Explained
Many small employers have questions regarding their responsibilities to their employees who belong to the various military reserve forces. Reservists are being called to active duty because of the heightening probability of military action in various areas of the world. The sudden absence of an essential employee can have far reaching implications in your organization’s daily operations. A good understanding of the law and careful planning can minimize the impact on your organization. .
The Uniformed Services Employment and Reemployment Rights Act pertains to ALL employers, regardless of the size of the organization. It applies to both “for profit” and “non-profit” entities AND to state and religious organizations. There are no employers exempt from this law.
Some basics of the Act are as follows:
- Any employee called to active military duty must be allowed to report as requested—in some instances, reservists are given as little as 48 hours to report to their active duty posts.
- The employer MAY hire someone to fill the vacated position while the employee is on active duty
- The employer is NOT required to pay the employee while he is on active duty or make up any shortfall in salary incurred because of the deployment. ONE EXCEPTION-state agencies must extend full salary for the first 30 days of active duty.
- The employer MUST maintain any benefits the employee already has in place—-health insurance, accrued vacation, and employer funded pension contributions.
- The employer CANNOT require the activated employee to use up vacation or sick time to cover part of his leave.
- The employer is NOT required to extend anticipated raises or promotions during the leave.
- Upon the employee’s return from active duty, the employer MUST either re-employ the employee in the same position as the one he had prior to deployment or in a substantially similar position. The rate of pay must be equal to or greater than the pay rate prior to the deployment.
There are some small gray areas of the Act—for example, what if the position is eliminated while the employee is on active duty? It’s expected that the Federal Government will require a very high standard of proof before releasing an employer of his re-employment obligation, so any business must be prepared to undergo extremely critical scrutiny if a position is eliminated.
How can a small business minimize the impact of an employee’s departure for military duty? First, BE PROACTIVE. Find out who within your organization is a military reservist, and ask him to write a list of his job responsibilities. You may find that his actual duties vary greatly from the job description you originally drafted. It’s very common in a small business for an employee’s responsibilities to change over time.
Second, make a plan for each potentially affected position as soon as possible. Are you going to hire a long-term replacement for the employee, or are you going to reassign job responsibilities to existing staff?
Third, cross-train other employees as much as possible with the reservist’s position—even if it is unlikely that the reservist will be called to active duty. Given the rapid change of world events, what the reservist has been told today can change tomorrow. Cross-training will soften the impact of the employee’s departure.
Last, explore your hiring options for filling the vacated position. Remember that hiring a new employee may impose obligations on your company to that new employee. For example, adding another permanent employee means that you must extend all benefits you currently offer to this new hire. You must also either have another position for that new employee when the military reservist returns or you may have to lay the person off. That act makes the new employee eligible for unemployment benefits. Other options are contract workers and temporary staff, but be sure you understand your role and responsibilities in these hiring scenarios. Employment law may limit your options.
Small businesses, because of the disproportionate impact a military call-up can create in the organization, must carefully comply with the Act and must aggressively prepare a contingency plan to ensure that the organization is not adversely impacted.
* Sources:
- Employer Support of the Guard and Reserve
- Uniformed Services Employment and Reemployment Rights Act
- Employment Security Commission of North Carolina
Anita Badrock
Staffing Director
Smither and Associates Personnel Services
100 Europa Drive, Suite 460
Chapel Hill, NC 27517
919-929-0127
919-933-5566 (f)