Labor Laws: Do They Extend To Military Personnel?

Military personnel are subject to both military rules and bylaws, as well as the laws of the state in which they reside. In the United States, the Uniformed Services Employment and Reemployment Rights Act (USERRA) offers several unique protections to military staff by law. This includes the right to return to their jobs after being called to action, protection from discrimination, and the right to reasonable accommodation for any service-related disabilities.

Military reservists' health insurance

Military reservists and those called back to action must follow certain procedures to advise their employer of their departure and return dates. This is a courtesy that helps employers find replacement or temporary labour to fill the vacancy until the staff member returns.

In the US, the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides job and benefit protection for military reservists returning to civilian employment after a period of uniformed service. It also prohibits discrimination based on military or veteran status. Under USERRA, employers must continue health insurance for employees on military duty for up to 18 months from the date of their absence, if the employee requests it. For periods of service beyond 30 days, the employee may be required to pay up to 102% of the total insurance cost.

Tricare Reserve Select (TRS) is a premium-based health insurance plan available worldwide to qualified members of the Selected Reserve and their families. TRS requires the payment of a monthly premium to receive insurance coverage. TRS covers health and vision benefits but does not include dental or pharmacy benefits.

Reemployment rights

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that gives members and former members of the U.S. armed forces the right to return to a civilian job held before being called up for active duty. USERRA covers all private employers, state governments, and offices of the federal government.

Who is eligible for reemployment?

To be eligible for reemployment, an individual must meet the following conditions:

• They must have held a permanent (not temporary) civilian job before going on active duty.
• They must give advance notice to their employer that they will be going on active duty. This can be done by sending a letter, speaking with their employer directly, or having an appropriate military officer notify the employer.
• The cumulative length of their service must not exceed five years.
• Their period of service must be honourable.
• They must return to work promptly or make a timely application for reemployment.

USERRA provides a number of protections for individuals returning to civilian employment, including:

• The right to be treated by their employer as if they never left for military service, including in terms of seniority, pension rights, and salary raises.
• The right to reemployment regardless of whether their old position still exists or there is a vacancy.
• The right to the same salary they were paid before going on active duty, taking into account any seniority gained while absent.
• The right to have their employer make reasonable efforts to accommodate any service-related disabilities.
• The right to continue their employer-based health insurance coverage for up to 24 months while in the military.

USERRA does not require employers to pay employees for time spent on military leave. However, federal law does give federal civilian employees the right to paid military leave, and many states have similar laws for state and local government employees. Some private employers also offer pay or partial pay during periods of military service.

What to do if you feel you are not being treated fairly

If an individual feels they are not being treated fairly or in accordance with the law, they can bring a conflict to the Ombudsmen Services Program of the Employer Support of the Guard and Reserve (ESGR), which offers informal mediation services. They can also file a complaint with the Department of Labor's Veterans' Employment and Training Service (VETS), or file a court action directly.

Discrimination protections

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects military personnel from discrimination based on their military status. USERRA applies to all employers in the United States, regardless of their size, and covers both full-time and part-time employees. The law prohibits employers from denying employment, reemployment, promotion, or any other benefit or privilege of employment because of an employee's past, present, or future military service. It also protects employees who exercise their rights under USERRA or assist others with USERRA claims.

USERRA provides specific reemployment rights for military personnel returning to civilian employment. Employers are required to reemploy service members in the same position they would have held if they had not left for military service, with the same pay, rights, and benefits. The time to apply for reemployment varies depending on the length of military service. For example, those who serve 181 days or more in the armed forces must apply for reemployment within 90 days of completing their service.

In addition to USERRA, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) prohibits federal contractors and subcontractors from discriminating against protected veterans in employment. VEVRAA also requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals.

At the state level, laws such as the California Fair Employment and Housing Act (FEHA) make it unlawful to discriminate against or harass individuals based on their military or veteran status. FEHA covers members and veterans of the U.S. Armed Forces, Armed Forces Reserve, and the National Guard. It prohibits refusal to hire, refusal to train, discharge, discrimination in compensation, and harassment based on military or veteran status.

Veterans with service-related disabilities may have additional protections under laws such as the Americans with Disabilities Act (ADA) and FEHA. These laws require employers to provide reasonable accommodations and prohibit discrimination based on physical or mental disabilities.

Seniority and benefits

Seniority

Military seniority is a way to determine precedence among commissioned officers, especially those of the same rank. Seniority is used to assign tasks, tactical commands, and promotions, as well as to establish general courtesy. Seniority is determined by rank, with higher ranks taking seniority. For instance, an Army colonel is senior to a captain, and a captain is senior to a lieutenant. Seniority also extends across services; for example, a major in the Army is senior to a captain in the Air Force. When officers are of the same rank, seniority is determined by the dates they assumed their ranks. If they have the same date of rank, then it is determined by their previous rank's date, and so on.

There is also a concept of "positional seniority" for top leadership positions. For instance, the Chairman of the Joint Chiefs of Staff is considered the most senior officer of the entire US military, even if there are contemporaries of the same rank with earlier dates of rank or longer time in service.

Benefits

Military personnel are offered unique protections and benefits under the law. The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides job and benefit protection for US Military Reservists returning to civilian employment after a period of uniformed service. It also prohibits discrimination based on military or veteran status.

USERRA ensures that military personnel are entitled to the same non-seniority rights and benefits as other employees with similar seniority, status, and pay who are on furlough or leave of absence. These include opportunities for advancement, general working conditions, job location, shift assignment, rank, responsibility, and geographical location.

USERRA also protects pension benefits. On reemployment, the employee is treated as if they had not had a break in service, and their pension benefits are calculated as if they had been continuously employed.

In terms of health benefits, if an employee has coverage under a health plan through their employment, they are entitled to continuing coverage for themselves and their dependents for up to 24 months while performing military service. However, they may be required to pay up to 102% of the full premium under the plan.

Additionally, veterans may qualify for up to 12 additional seniority points for qualifying military service prior to their employment with the State of California, according to the state's Government Code.

Notification of military service

When it comes to the topic of labor laws and their application to the military, it's important to understand the specific rights and protections afforded to military personnel. One key aspect is the requirement for "Notification of Military Service". This process involves the following steps and considerations:

Verbal or Written Notification:

Military personnel are required to notify their civilian employer of their upcoming military service. This notification can be given either verbally or in writing, as per the Uniformed Services Employment and Reemployment Rights Act (USERRA). It is important to provide this notification as soon as possible after receiving notice of the service request and departure/return dates.

Length of Service and Return to Work:

The length of an individual's active-duty service will determine the procedures for returning to their civilian job. For absences of less than 31 days, individuals must return to work on the next scheduled workday following their return, excluding travel time and a reasonable rest period. For service periods between 31 and 180 days, individuals have 14 days of flexibility before resuming their work duties. If the absence exceeds 180 days, the individual must submit an application for re-employment within 90 days of completing their military service.

Health Insurance Coverage:

During the first 30 days of military duty, an individual's employer is required to continue their health insurance coverage. After this period, the individual and their dependents can rely on military healthcare coverage if their service is for more than 30 days. Alternatively, they can take advantage of the Health Insurance Portability and Accountability Act (HIPAA), which allows them to enroll in another group health plan, such as a spouse's employer's plan, within 30 days of losing eligibility under their current plan.

Pension Plan Considerations:

Military leave should not negatively impact an individual's pension plan benefits. Upon returning to work, the pension credit should be as if the leave had never occurred. If employee contributions to the pension plan are required, individuals must be given the opportunity to make up any missed contributions for a period of up to three times the length of military service, not exceeding five years.

Rights and Protections:

USERRA provides important rights and protections for military personnel. It prohibits employers from discriminating against employees based on their military or veteran status. Additionally, employers are required to promptly reemploy service members upon their return, placing them in the position they would have held had they not been on military leave. If the individual is unable to return to their previous position due to a service-related disability, the employer must make reasonable accommodations or transfer them to an equivalent position.

In summary, "Notification of Military Service" is a crucial aspect of labor laws pertaining to the military. By following the guidelines set forth by USERRA and understanding their rights and responsibilities, military personnel can ensure a smooth transition back to their civilian employment.

Frequently asked questions