The National Guard and Reserve components of the United States Armed Forces have been utilized more since 9/11/2001. The increased reliance on the National Guard and Reserve impacts not only the military member but also their employer. Small businesses in this paper are defined as a business employing less than 500 people. Small businesses account for eighteen percent of National Guard and Reserve employers. Businesses that employ less than 500 employees account for thirty-five percent (CBO, 2005). Regulations have been enacted to protect military member’s civilian jobs when they are called to duty. The regulation that governs the rights of these military members is the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994. Often small businesses do not understand law and this can cause them to face legal ramifications.
USERRA was enacted in 1994, to ensure that National Guard and Reserve members of the United States Armed Forces that are called to duty have employment rights upon their return. USERRA Replaced the Veterans’ Reemployment Rights Act (VRRA) of 1940. VRRA was enacted to protect the military members that were called to duty for WWII. USERRA is the federal laws that establishes employment, reemployment rights and benefits for military members currently serving or who have served in the Armed Forces (USERRA, 1994). The law also provides for protection from retaliation for military members who are currently or previously served in the Armed Forces.
Often it is unclear to employers as to who is covered and what type of service in the Armed Forces is covered. USERRA applies to all public and private employers in the United States, regardless of size, to include an employer with only one employee. USERRA’s definition of service in the Uniformed Services covers all categories of military training whether it is volunteer or involuntary. The service can be during war or peace time (USERRA, 1994).
USERRA grants employees specific rights and requires that employees uphold specific responsibilities to their employer. First, USERRA grant protection of initial employment to employees that currently serve or are planning on serving in the Armed Forces. Second, retention is protected for members’ returning from service to the same job, pay and rank as if they weren’t deployed. Also, if promotions automatically occur within the company after a certain period of time than the deployed member would also receive a promotion upon their return from service. Second, if the employee becomes injured or disabled during their military service than the employer is required to make reasonable accommodation for the returning employee. Third, employers must continue to provide benefits for employees that are deployed for less than 30 days. If an employee is deployed for over 30 days than the employee can elect to continue their health care benefits but may have incur the costs associated with doing so.
Employers are expected to be responsible as to upholding their responsibilities to employees and employees have responsibilities that they are expected to uphold. First, the employee must give advanced notice to their employer, certain circumstances exempt this. Military necessity can take precedents of this requirement. A conflict or natural disaster could occur and the employee isn’t given time to notify their employer. Second, the employee has five years or less of cumulative service in the uniformed services while employed with a particular employer. If the time exceeds five years than the employer isn’t required reemploy the employee. Third, employees need to re-apply for employment in timely manner upon their return from serving. If the period of service is less than 30 days the employee must return to work the next day. If the length of service is 31 through 180 days the employee is required to re-apply within 14 days of completing service. If the length of service is over 180 days the employee must re-apply for employment within 90 days of completing service (USERRA, 1994). Forth, the employee must be released from service with an honorable, general or medical discharge. If the employee receives a dishonorable discharge the employer isn’t required to re-employee the employee.
Uniformed Service members are also protected from retaliation due to serving under USERRA. Upon return to the business an employee is protected from discrimination and retaliation due to their military service. USERRA requires that if an employee was deployed for over 180 days they can’t be terminated unless there is cause for one year. If the deployment was from 31 through 180 days the employee can’t be terminated without cause for six months. If the deployment was less than 30 days the employee isn’t offered protection under USERRA (USERRA, 1994). If employee believes that he/she is terminated for discrimination or retaliation due to uniformed service than the employee must provide evidence to have a case. In the case Hance vs. Norfolk Southern Kelly Hance proved that she was terminated due to her military service. Hance deployed for two weeks and upon her reemployment was terminated from Norfolk Southern. Hance was awarded over 300,000 dollars (Kelly W. Hance vs. Norfolk Southern Railway Company, 2008)