USERRA and Layoff

[Guest mmc]

An employee was hired 4/8/2002 and was laid of 12/3/2002 having worked more than 1000 hours. The service req is one yr of service with qtrly entry dates. While the employee was laid off his unit was activated and he was sent to Iraq. The employee returned to work on 5/14/2004 when he came back from military duty.

I think his date of plan entry is 7/1/2003 and should receive a ps contribution for 2003 based on his theoretical wages for 7/1/2003 to 12/31/2003.

Any thoughts?

[ccassetty]

Were others that were laid off at the same time brought back to work? If so, when?

If he would have gone back to work at the same time as others called back to work, had it not been for the active duty, then I believe you are correct that he should be given credit for the time and salary he would have made had he not been on active duty. I don't believe any credit is necessary for any portion of his active duty when he would have still been laid off.

I'm assuming here that the employer has determined that the employee has otherwise met all the requirements for eligibility for benefits under USERRA.

Read the plan document carefully for language covering laid off employees, the answer to this question may depend to some extent on that language as well. In all cases, the employee must receive the greater of the benefits provided under the plan or under USERRA.

The DOL has special offices set up just to help with questions on USERRA benefits. Go to the DOL web site and enter USERRA in the search box. You will find lots of information, including information on finding an office near you.