Benefits March 25, 2003

AFL-CIO Reserves Web Site For Military Service

March 25, 2003 (PLANSPONSOR.com) - With roughly half of the current United States military composed of reservists, 175,000 of which have been called up in recent weeks, the AFL-CIO has launched an online information resource for reservists and their families about their job rights.
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The Web site serves as a refresher course on the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides guidelines employers, regardless of size, must follow when military reservists and the members of the National Guard return to work following their service.

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Additionally, the Web site contains information on benefits for reservists, a 19-page US Department of Labor fact sheet on USERRA, as well as a link to the Employer Support of the Guard and Reserve Web site that includes frequently asked questions about the rights of employees on active duty.

USERRA Review

Under provisions of the act, all public and private employers must extend reemployment rights and certain benefits protections to reservists called to active duty as well as those who volunteer. USERRA requires employers to provide their workers on military leave with the same benefits that employees on other types of leave receive, and COBRA-like coverage thereafter for any remaining time that they are still performing their military obligations. Employees also may use accrued vacation while on leave, but cannot be forced to do so.

Reinstatement Eligibility

To be eligible for reinstatement, the employee must:

  • Give advance notice prior to leaving
  • Be on active duty for less than five years (excluding certain service required by a declared war or national emergency)
  • Not be dishonorably discharged or separated under other than honorable conditions
  • Report back to work in a timely manner after discharge.

If the employee cannot perform the same job after their return, the employer must use reasonable efforts, such as training, to enable the employee to upgrade or refresh their skills to become qualified for that position.

Additionally, the law requires the employer to provide the same health care coverage for reservists on active duty for 30 days or less as it provides to other employees. If the service period is longer, an employee may choose to continue the employer-sponsored health care for up to 18 months. However, the employer can require the affected employee to pay up to 102% of the full premium.

Employers are not allowed to consider time on active duty as a break in employment for pension benefit purposes, and military service must be considered service with an employer for vesting and benefit purposes.

What the law does not require is an employer to continue to pay a worker on active duty. Although a recent survey conducted by Business & Legal Reports found two-thirds of employers choose to do so, with more than a quarter (26%) offering full pay to employees who get called to duty, 40% offering differential pay (the difference between salary/wages and military pay). The remaining 35% offered no pay at all (See Most Employers Offering Pay During Leave ).

The AFL-CIO’s information can be accessed at www.aflcio.org/reserverights .
Compliance March 24, 2003

EEOC Launches New Mediation Pilot Program

March 24, 2003 (PLANSPONSOR.com) - The US Equal Employment Opportunity Commission (EEOC) has implemented a new voluntary mediation pilot program providing private sector employees another avenue to pursue discrimination charges filed with the EEOC.
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>The new “referral back” mediation pilot, which will be carried out at the district office level, gives an individual who has filed a discrimination charge against a participating employer the option to have their charge referred back to the employer’s internal dispute resolution department, according to a news release.

>Should the employee choose such a route, the charge will be suspended for not more than 60 days to provide the charging party and the employer an opportunity to resolve the dispute using the employer’s dispute program.   If the dispute is resolved, the charge will be closed pursuant to the EEOC’s procedures governing withdrawal and settlement of charges. Otherwise, EEOC proceedings on the original charge will recommence.

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Stipulations

>However, the mediation program is not without its caveats.   The provisions of the new pilot dictate that the EEOC will refer charges back to those employer-provided internal dispute resolution programs that meet the following criteria:

  • employee participation is voluntary
  • the program has clearly written procedures
  • the employer program is free to the employee
  • the program addresses all claims and relief under EEOC-enforced statutes
  • settlements obtained must be in writing and enforceable in court.

Cari Dominguez, chair of the EEOC, stressed the selection of an employer to participate in the pilot program does not constitute an endorsement or approval by the EEOC of an employer’s internal dispute resolution program. Instead, the EEOC is acknowledging that the employer’s internal program is the type of program that the EEOC is interested in evaluating for the pilot, Dominguez said.

Dominguez added: “We are interested in exploring whether existing employer-provided dispute resolutions programs that operate fairly and voluntarily, afford employees appropriate and meaningful remedies, and do not seek to interfere with the commission’s enforcement authority, can serve as an effective means of resolving employment discrimination charges filed with the EEOC.”

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