The Uniformed Services Employment and Reemployment Rights Act of 1994 provides significant benefits to U.S. service members which employers must recognize to avoid liability. The purpose of the act is to encorage noncareer service in the armed services by eliminating disadvantages to civilian careers and employement which can result from such service and to prohibit discrimination against men and women because of their service in the uniformed services. The law is to be broadly construed in favor of the serviceman or woman.
The law applies both government and private employers and individual supervisors and business owners are subject to liability for violations. The law prohibits adverse employment actions based upon a person’s membership in the armed services. It is unlawful to deny initial employment, reemployment, retention, promotion, or any benefit of employment such as health or pension benefits based upon a person’s military service.
A person returning from military service is entitled to reemployment with the employee’s preservice employer if the following five criteria are met:
1. The employee left employment with the employer in order to serve in the uniformed services.
2. The employee gave the employer advance notice of the service unless the giving of notice was precluded by military necessity.
3. The employee has five years or less of cumulative military service during his or her employment witht he employer.
4. After his or her release from the service, the employee timely reported to the employer or applied for reemployment.
5. The employee was separated from the servic eunder other than dishonorable conditions.
The uniformed services include the navy, army, air force, marines, coast guard and national guard. The law places a five-year cap on the cumulative length o fmilitary service that has caused an employee’s absence from employment with the employer. There are, however, exceptions to the cap including cases where service beyond five years is required to complete an initial period of service. Other exemptions related to specialized training exist as well as exemptions related to war and national emergencies.
Once the employee proves that he or she is a serviemember entitled to reemployment, the burden shifts to the employer to prove compliace with the law. The employer may prevail if the employer demonstrates th eimpossibility or unreasonableness fo reemployment due to changed circumstances of the employer; undue hardship in providing necessary training to the person; or the person’s preservice employment was for abrief, nonrecurrent period and there was no reasonable expectation that such employment would continue indefinitely or for a significant period.
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