Administration Of Military

USERRA defines uniformed services as military service and training, including Payroll software work  done on a voluntary or involuntary manner, whether in time of war or peace. Examples of which are any active duty services, training under active or inactive duty, National Guard duty under federal administration (not under state administration), and funeral honor the obligation. However, independent contractors are excluded from USERRA’s coverage.

Employers are required to display public information about USERRA rights for military employment and re-employment in the work environment. Before an employee departs for military leave, the following steps are needed to be taken by the employer in order for better managing payroll:

Step 1: The Evaluation Of Period Of Request Under USERRA’s Definition

Employees are expected to give the employer notice as early as possible can be for the need of military-related leave. Employers are allowed to request documentation for absences in the military of 31 days or more upon an employee’s return but not necessarily before military leave.

Step 2: The Employee’s Health Benefits Coverage Review

Arrangements must be made by the organization if the employee is covered currently under the employer’s health insurance plan. Employers are required to keep on the health benefits for the following circumstances:

  • Absences of 31 or more days: Coverage may be elected to be continued by the employee up until 24 months or for the whole military service period, whichever is shorter.
  • Absences of less than 31 days: Coverage is entitled to the employee under the health benefits plan if employed continuously. The regular premium will continue to be paid by the employee.

Step 3: Determining Of Compensation The Employee May Be Entitled To During Absence

The following are not required to provide by employers under USERRA but with consideration of salary basis rules under FLSA:

  • Provide pay for military leave for nonexempt employees.
  • Pay exemption for employees on workweeks even if the employee performs no work for the employer the entire workweek
  • Provide supplemental or differential income.

Step 4: Additional Employee Benefits Review

The following are also to be considered by the employer regarding for provision of additional benefits to the employee:

  • Usage of vacation or paid-time-off (PTO) benefits on military-related absences
  • Entitlement for accrual of PTO on military leave if allowed on leave on absence
  • Entitlement for the usage of sick leave accumulated during the employment period
  • Entitlement for accrual of all pension benefits received during continuous employment
  • The requirement to make contributions to employee’s 401(k) plan upon military deployment

Step 5: Determining The Employee’s Entitlement To Re-Employment Rights

For entitlement of reinstatement, the following conditions are needed to be met:

  • The employee in need of military leave had provided notice to the employer.
  • The period of military service is not exceeding five years in regular cases.
  • The employee was discharged under honorable conditions.
  • The employee returned and re-applied for employment within the following time restrictions:
  • Leaves of a period less than 31 days: No application is required.
  • Leaves of a period more than 31 days but less than 180 days: Application for reinstatement is required within 14 days after military service completion.
  • Leaves of a period more than 180 days: Application for reinstatement is required within 90 days after military service completion.

Step 6: Determining The Position To Be Reinstated Into Which The Returning Employee Is

The ‘escalator principle’, the principle being applied here, means that if the employee returns after military service, he/she will still be able to return to the position he/she would have attained if not been for the said service. It also means that the employer has the obligation to consider the promotion of the employee if he/she had been qualified before the leave of absence was made. If the employee is not qualified in whatever circumstance, he/she will still regain the position held before the absence of any equivalent to that. If reinstatement is impossible due to uncontrollable circumstances, then the employer will not be held obligated for the employee.

Step 7: Determining The Returning Rate Of Pay Of The Returning Employee

If an employee holding the same position had received any form of an increase in pay based on performance, then the returning employee will also be entitled to that same benefit.

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