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No makeup payment may exceed the amount the service member would have been permitted or required to contribute had they remained continuously employed. #block-opa-theme-content > div > div.guidance-search > div.csv-feed.views-data-export-feed {display:none;} The service member has been working at the place of employment for two years. .h1 {font-family:'Merriweather';font-weight:700;} § 1002.262(c). 10. How should pension contributions be calculated for the one-week absence? How should pension contributions be calculated for the three-year absence? When must I make pension contributions attributable to the employee's military related absence? The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that guarantees employment rights to members of the military, both active and reserve. The service member, who receives pension contributions based on a percentage of compensation earned, is scheduled to work 40 hours a week. #block-googletagmanagerheader .field { padding-bottom:0 !important; } The commission earned each week varies, therefore, the service member's rate of compensation she would have earned if not for her military-related absence is not reasonably certain. Washington, DC 20210, An agency within the U.S. Department of Labor, 200 Constitution Ave NW The service member receives orders for a two-week deployment. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} Therefore, employers are required to determine a reemployed service member's eligibility for participation in a pension plan and the vesting and accrual of the service member's pension benefits as if the service member had not left for military service. The service member's pension contributions should be calculated taking into account the point in time there's reasonable certainty that the promotion occurred. Since its enactment in 1994, USERRA has provided that employees who return to employment with USERRA reemployment rights are entitled to service and certain retirement benefit accruals for their period of absence to perform military service. How should pension contributions be calculated for the two-week absence? Protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. An official website of the United States government. Uniformed Services Employment and Reemployment Rights Act (USERRA), USERRA - Uniformed Services Employment and Reemployment Rights Act, Severe Storm and Flood Recovery Assistance. Before sharing sensitive information, make sure you’re on a federal government site. Accessed May 13, 2020. After reemployment, pension contributions should be calculated based on the average rate of compensation earned during the previous 12 months. Must I make contributions to the employee's pension while the employee is away? 1. Reinstatement Back pay Liquidated damages Attorneys’ fees You can’t refuse to employ a member of the military (including National Guard members or Reservists) because of their military affiliation, performance of service, application for service, or obligation for service. Electronic Code of Federal Regulations. You may have heard that if an employee asks for leave for military service, you must “hold their job” for them when they return. How should pension contributions be calculated for the one-month absence? § 1002.191. Learn About Payroll Taxes and How to Calculate and Report Deductions, How to Deal With Employee FMLA Leave During COVID-19 and Beyond, Laws and Regulations Affecting Independent Contractor Status, 6 Penalties for Parents Who Fail to Pay Child Support, Create an Employee Handbook/Policies and Procedures Manual, How to Deal With Pay, Tax, and Work Laws for Remote Employees, The Balance Small Business is part of the, Veterans’ Employment and Training Service (VETS), U.S. Department of Labor USERRA Advisor elaws, Other Workplace Standards: Reemployment and Nondiscrimination Rights for Uniformed Services Members, USERRA: A Guide to the Uniformed Services Employment and Reemployment Rights Act, Making sure they are not disadvantaged in their civilian careers after they return from military service, Allowing them to regain their civilian jobs after service, Making sure they are not discriminated against by employers because of their service responsibilities, They gave their employer advance notice of their military obligation, They have been away five years or less because of their military obligation (excluding exemptions), They haven’t received a disqualifying discharge or been discharged under less than honorable circumstances. If the promotion would have occurred after the service member was deployed for one year, then there should be pension contributions at the pre-service rate for 80 hours a month for the first year and contributions at the promoted rate for 80 hours a month for years two and three. The service member has been working at the place of employment for ten years. My employee is currently absent from work for military service. Additionally, (1) time spent in preparation for military service, and (2) post-service time "within which a person may apply for reemployment and/or recover from an illness or injury incurred or aggravated by the military service" must be treated as continuous employment. "E Laws USERRA Advisor – Pay and Raises." With employees requesting leave for National Guard or Reserve duty during the coronavirus epidemic, you need to know your responsibilities as an employer. .table thead th {background-color:#f1f1f1;color:#222;} The service member's pension contributions should not be calculated based on the number of hours per month he is guaranteed to be paid, as this does not represent the actual number of hours he worked prior to his military-related absence. It covers employees—including part-time and probationary employees—but it doesn’t cover independent contractors, freelancers, or other non-employees who do work for your business. The service member goes out on orders for three years. USERRA requires employers to reemploy an eligible returning service member into the position and benefits the service member would have had, with reasonable certainty, if not for the military service. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment. What are my obligations to make pension contributions for an employee who has missed contributions during military-related absence? Had the service member been continuously employed, it appears reasonably certain that he would have worked 80 hours per month, as he has done the previous eight months. The service member is absent from work for one month due to military service. If it is impossible or unreasonable for the employer to make the contribution within this time period, the employer must make the contribution as soon as practicable. USERRA creates certain rights and protections for uniformed service members. The reemployed service member's entire "period of absence from employment due to or necessitated by" military service must be treated as continuous employment. 20 C.F.R. § 1002.259. See the examples below for further explanation. U.S. Department of Labor, Veteran's Employment & Training Service. For employer contributions to a plan in which employees are not required or permitted to contribute, the employer must make the contribution attributable to the reemployed service member’s military-related absence no later than ninety days after the date of reemployment, or when plan contributions are normally due for the year in which the military service was performed, whichever is later. However, if the service member was scheduled to work 40 hours per week, but consistently worked 50 hours per week prior to the military-related absence, it is reasonably certain that the service member would have worked 50 hours per week if not for the period of service. Pension benefits should be determined based on the rate the reemployed service member would have earned but for the period of military service, if that rate can be determined with reasonable certainty. 20 C.F.R. 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