There are several bills that have been passed with the intention of protecting members of the military and their employment status. The Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA, as well as the Fair Labor Standards Act of 1938, or FLSA, both make provisions for members of the armed service who are also employed elsewhere. As an employer, whether or not you currently employ a member of the military, you should familiarize yourself with these regulations to understand what your obligations are to servicemen and women in your employ.
Legal Obligations Outlined in USSERA
If you employ a member of the military who is called to service, you have several obligations that you must fulfill in order to comply with laws. USERRA dictates that military member employees who leave their position in order to perform military service should then be granted a leave of absence or furlough from their employer. This includes all of the benefits typically contained in such a classification, too. Under USERRA, service members also cannot be terminated or discharged from their position after a military-sanctioned absence, except if they are reemployed after service greater than 180 days and a year has elapsed, or 180 days have passed since reemployment following service between 30 and 181 days.
Legal Obligations Outlined in FLSA
FLSA outlines requirements for a service member’s pay when working for a civilian employer. Military leave can be complicated if the service member holds a salaried position. As an exempt employee, wage deductions made because of absences over a part-week period are not allowed. Absences that span a week or more, however, are subject to offset by the pay the employee receives from service. For example, if an employee attends training for a week, his or her civilian employer is permitted to deduct the wages earned from service from the weekly wage typically paid, and this does not negate the employee’s exemption. Non-exempt employees are not entitled to pay during a military absence, but you must provide them with written notice stating such.
Common Violations to Avoid
These are some of the most common regulations regarding a military employee’s employment status and pay. There are plenty of other provisions made in both USSERA and FLSA, but complying with the basic tenets of each mandate is the best way to ensure your military employees receive the treatment, benefits and work environment they are entitled to. In order to accomplish this and avoid liability, you should be careful of these common military leave law violations:
- Don’t dismiss employees who have been gone during extended service. Personnel are entitled to return to their position up to five years after leaving for service, and in some cases longer.
- Allow service members to contribute to their benefits during service. Employees who have contributory benefits plans should be allowed to either contribute during service or catch up upon returning home.
- Post information about USERRA and FSLA where all associates can view it. Educating employees about their rights can encourage accountability.
- Give returning employees the commensurate rewards they would have earned without an absence. Employees who return from service are not just entitled to their prior position. They are also entitled to any pay raises, promotions or other rewards they would have reasonably received if they had not left for service. The employer must accommodate any training that this requires.
Apart from wrongful terminations and wage violations, these are the most often overlooked protections provided to employees in the military. It can be difficult to ensure your actions are in compliance with all military leave laws, but reviewing these regulations and familiarizing yourself with the standards is the best place to start. As an employer, you will be a major part of returning service members’ readjustment to civilian life, so you should do everything you can to accommodate their needs.
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