Uncle Sam Wants You To Comply With USERRA

Uncle Sam Wants You To Comply With USERRA

By Allison Bell

Employers have been watching some of their best employees head off to war.

Benefits managers at bigger companies might know everything they need to know about the Uniformed Services Employment & Reemployment Rights Act, but USERRA experts say benefits brokers can give smaller employers valuable advice about where to go for information about compliance.

USERRA, which replaced the Veterans Re-employment Rights Law in 1994, protects the jobs, salaries and benefits of reservists and Guard members while they are on active duty. It also provides the same level of protection for workers who decide to enlist in regular military units.

USERRA shares many similarities with the federal Family and Medical Leave Act and the COBRA health coverage continuation law. But, because the reach of USERRA is so broad, it forces many more business owners to bone up on benefits compliance issues.

Unlike COBRA and the FMLA, which exclude the smallest employers, USERRA “has no numerical cutoff,” says Hal Coxson, an attorney in the Washington office of Ogletree, Deakins, Nash, Smoak & Stewart P.C.

Another difference has to do with employer attitudes: many employers see complying with USERRA as a way to serve their country.

“The questions we get from employers are not about, How do we get around this? but how to comply,” Coxson says.

USERRA gives employees the right to ask for leaves of absence to satisfy all types of voluntary and involuntary military obligations of five years or less. Employers may not have to give employees their old jobs back, but they do have to give employees jobs comparable to their old jobs.

The section governing health benefits requires employers to offer continuation of health benefits for the employees and their dependents for up to 18 months after the employees go on active duty.

The health benefits section does give employers the right to ask workers who use USERRA to pay up to 102% of the full cost of the health premiums.

The section governing pensions requires employers to increase the seniority of workers using USERRA as if they were still on the job. Employers must continue to make contributions to defined-benefit pension plans and offer matching contributions for 401(k) plans. Workers who return to their old jobs get as much as five extra years to catch up on contributions missed while they were away on active duty.

Employers also must treat workers out on USERRA leave at least as well as they would treat employees out on other types of leave in connection with other benefits, such as life insurance and disability insurance.

In July 2002, the U.S. Department of Labor posted informal advice on its Web site indicating that employees out on military leave continue to accumulate FMLA eligibility time as if they had spent the military leave time working for their employers.

Employers and benefits brokers can get more detailed information about USERRA from the Veterans Employment and Training Service, the division of the Labor Department that is responsible for administering USERRA. The VETS Web site is at http://www.dol.gov/vets/.

Employer Support of the Guard and Reserve, a nonprofit group chartered by the U.S. Department of Defense, provides information about USERRA and organizes programs for employers. One program, Bosslift, transports employers and supervisors to National Guard and Reserve training sites. The ESGR Web site is at http://www.esgr.org/.

Many states also have their own versions of USERRA.

Coxson and colleagues include descriptions of the state versions of USERRA along with information about the federal version in the Military Leave Compliance Kit, a collection of USERRA compliance information published by M. Lee Smith Publishers L.L.C., Brentwood, Tenn.

Coxson says he has seen much more interest in USERRA since the Sept. 11, 2001, terrorist attacks.

Coxson responded by organizing a Web conference on the topic with the Society for Human Resource Management, Alexandria, Va.

SHRM had never before registered more than 200 participants for a Web conference. It set up the USERRA conference so that 500 could log on.

In the end, 1,500 people tried to log on, and 1,000 were turned away.

Coxson followed up by organizing a similar, bigger conference with the U.S. Chamber of Commerce, and later used the Webcast as the basis for the USERRA compliance toolkit.

Reproduced from National Underwriter Edition, April 7, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved. Copyright in this article as an independent work may be held by the author.