A FAIRFAX, VA BUSINESS LITIGATION ATTORNEY DISCUSSES AN EMPLOYER’S REQUIREMENTS TO HONOR A RETURNING SERVICE MEMBER’S SENIORITY BENEFITS
As a Fairfax, VA business litigation attorney, I’m occasionally approached by clients who are confused about the accrual of seniority-based benefits when they rehire a former employee who had previously departed for military service. The Uniformed Services Employment and Re-Employment Act of 1994 governs the rehiring of servicemen and servicewomen who are seeking re-employment with their former employees. The Act states: “Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed.”
Seniority-Based Benefits Covered by USERRA
The following is a list of common seniority-based benefits. When a member of the armed forces returns to full employment, he or she must also have these benefits restored in such a manner that they are identical to those of a similar employee who had never left.
Vacation – If vacation is granted on a seniority basis, returning military service employees must be able to accrue vacation time at the rate that they would if they had never left. For example, if employees gain an additional week of vacation for every year of service with the firm, then a returning veteran who had been gone for a year should accrue that additional week as well.
Promotions – If promotions are awarded due to seniority—instead of merit or some other method of advancement—then the returning military veteran must be promoted to whatever position would reflect an unbroken term of service with the company.
Wages – If payment is based on seniority, the returning employee would command the wage that he or she would receive if service was uninterrupted. For instance, if all employees receive step raises on their anniversary dates, then the returning serviceman or servicewoman must have those steps included in their payment calculations. Payment structures of this sort are common with collective bargaining agreements.
Not all benefits in a business organization are awarded based upon seniority. For benefits that are not accrued by seniority, the returning service member should be treated the same as any other employee of the business who is returning from a leave of absence.
Returning military service members often pose a challenge to business owners and managers. In many cases there are additional expenses involved in rehiring a USERRA protected employee. If you have any questions or concerns regarding USERRA and the rehiring of former employees who reported for military service, contact a Virginia business attorney with experience in labor law.
