Vesting and USERRA

[Brian Gallagher]

How does vesting work for USERRA for hours counting plans for vesting?

For example, say:

2001 works full year 1000+ hrs

2002 works 1000+ hrs, gets called up in Oct

2003 comes back in May and works 900 hrs thru Dec

1 yr vesting = 1000 hrs

Does this person get credit for 2003?

[ccassetty]

After the person comes back, all of the time the person was in qualified active military duty is counted for vesting purposes as though the employee had remained employed. It sounds like this employee was a full time employee and so it would be assumed that the employee would have worked the 1,000 hours in 2003 had he/she been employed through all of 2003. So, 2003 would count as another year of vesting service.

[Brian Gallagher]

So it's up to the plan administrator to interpollate hours worked for the portion of the year the person missed?

Is that stated anywhere?

[jaemmons]

Hours and compensation are based on the "rate of pay" the employee would have been entitled to had they not left for military duty. If the rate of pay cannot be "reasonably" determined, the employer must take an average of the compensation and hours over the prior 12 month period ending on the date they leave for military services. I believe it is discussed in Section 4318 of Title 38 to the United States Code.

[QDROphile]

If you had a good plan document, the plan document would have terms to provide for appropriate imputed income and imputed service.