USERRA

Uniformed Services Employment and Re-Employment Rights Act (USERRA) provides uniformed service members with a right to return to their pre-service employment after voluntarily or involuntarily leaving employment for uniformed service or training if certain conditions are met. It also provides protections for the benefits you would have attained if you had not been absent due to military service. Below is further information on how USERRA applies to retirement benefits for service members who leave and return to a MPERA-administered retirement plan.

USERRA only applies to service members who return to work, or apply to return to work, with their pre-service employer. If you choose not to return to the same employer, the following retirement benefits will not be available to you.

Retirement Benefits

When you are re-employed under the USERRA guidelines you must be treated as if you had no break in service. For retirement purposes, we will use your uniformed service time when determining your membership service for vesting purposes under your retirement plan. You are entitled to membership service for the duration of the uniformed service, but will only accrue service credit if contributions are paid into the plan for that time. You can make up the missing service credit by making contributions to your plan after you return to employment following your qualified uniformed service.

Unlike a traditional purchase of service, if you choose to make up the contributions under the USERRA guidelines your employer must contribute the same share of contributions that it would have made for any other member. However, please be aware that USERRA places a time limit on the period of time in which make-up contributions can be paid, as explained below.

Contributions

If you choose to make up contributions under the USERRA guidelines, you must fill out the top portion of the Election to Purchase USERRA Absence form and give it to your employer to complete the certification and compensation estimate. To determine the contributions due for the absence, your employer must determine the compensation you would have received during the period of uniformed service:

At the salary rate you would have received if not for the period of uniformed service (including any pay raises you may have received if there had been no break in service); or
If your employer cannot determine the hourly rate with reasonable certainty, the contributions will be calculated on the basis of your average rate of compensation during the 12-month period preceding the period of uniformed service.

Once MPERA receives the completed form, we will provide an estimate of required contributions for the absence. If you choose to make up the contributions, you must do so within a period of time that is three times the length of the uniformed service absence from the date you return to your pre-service employment, but in no case may the period be longer than five years. For example, if you are absent for one year, the contributions are due within three years of your re-employment. If you are absent for three years, the contributions are due within five years. No interest will be charged. Your employer will also contribute the employer’s share of your make-up contributions.

You will be able to make up the contributions on a tax-deferred basis through either payroll deductions or in a lump-sum payment from a direct transfer from an eligible retirement plan or individual retirement account, or you can choose to pay the contributions on a post-tax basis through installments or in a lump-sum.

Eligibility

USERRA applies to persons who perform active and reserve duty in all branches of the military including:

Army
Air Force
Navy
Cost Guard
Marine Corps
Public Health Services Commission Corps

USERRA also applies to service in the Army National Guard or the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty. National Guard called to active duty by the President of the United States are under federal “command and control” and are subject to USERRA. National Guard called up at the request of a state governor are not covered under USERRA. (The Montana Military Service Employment Rights Act will apply to such cases).

Time in which you are absent from work for examinations to determine fitness for military duty and for the purpose of performing authorized funeral honors duty is also covered.

Re-employment Rights

Generally, if you leave work in order to serve or train in the uniformed services you may be entitled to re-employment with your pre-service employer if:

You give your employer advance notice of military service;
The cumulative leave, combined with all the other previous military leave with that employer, does not exceed five years (some service is exempt from this limitation);
You return to work or submit an application for re-employment within a certain timeframe after the uniformed service; and
You do not separate from uniformed service with a disqualifying discharge or under other than honorable conditions.

Note: The notice requirement does not apply when there is a military necessity or when notice is impossible or unreasonable. The five-year limit does not include time in which you are ordered to remain on active duty or called into federal service as a member of the National Guard.

Timeframes for return-to-work

Service of 1 to 30 days: You must report to work by the beginning of the next regularly scheduled day that would fall eight hours after the end of the calendar day you returned home.

Example: If your regular schedule was Monday through Friday, beginning at 8:00 a.m., and you returned home at 10:00 p.m. on Monday, you would be required to report to work Tuesday at 8:00 a.m. However, if your shift began at 6:00 a.m., you would not be required to report to work until Wednesday at 6:00 a.m.

30 Days to 180 Days: If you are absent for more than 30 days but less than 181 days you must complete an application for re-employment within 14 days of completion of service.

More than 180 days: If you are absent for more than 180 days you must complete an application for re-employment within 90 days of completion of service.

If you fail to return or reapply within the prescribed timeframe, the protections offered under USERRA are not automatically forfeited. Rather, you are subject to the established rules, policy, and/or practice (including discipline or termination) applied to any employee absent from scheduled work.

What You, the Member, Need To Do

Notify your Human Resources department prior to your absence for service or training if possible;
Make sure your retirement beneficiary information is updated with MPERA;
Return to work, or apply for re-employment, within the required timeframe;
Complete the Election to Purchase USERRA Absence form and give it to your employer as soon as possible; and
Once you receive a contribution cost determination from MPERA, make arrangements for the payment of the make-up contributions within the required period.

Please contact MPERA if you have any questions regarding USERRA’s application to a MPERA-administered retirement plan.

References: 38 USC §§ 4301-4335; §§ 19-2-704, 19-2-707, MCA and ARM 2.43.2315