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elaws - employment laws assistance for workers and small businesses - USERRA Advisor

For specific questions on pension and retirement plans, you should contact your local VETS office. The information here is only an overview, and may not fully address or resolve your individual situation. If you think your situation warrants a complaint, please review the instructions on how to file a complaint form. You will find a link to the form on the instructions page. The Veterans' Employment and Training Service will investigate complaints and attempt to resolve them. Persons whose complaints against non-Federal employers are not resolved by VETS may request that their complaints be submitted to the Attorney General for possible representation in Federal court. Unresolved complaints against Federal employers will, upon request, be referred to the Office of Special Counsel for possible representation before the Merit Systems Protection Board.

NOTE: In federal cases involving nonselection or layoffs, a person may wish to file complaints under both the USERRA and Veterans' Preference (VP) statutes. If you think that this situation applies to you, you must submit a separate complaint form for each statute allegedly violated (i.e., one for USERRA and one for VP). When this situation occurs, VETS will open two separate cases for investigation.

GENERAL: USERRA requires that returning service members who meet the law's eligibility criteria must be treated as if they had been continuously employed for pension purposes, regardless of the type of pension plan the employer has adopted. This applies to vesting (determining when the employee qualifies for a pension) and also benefit computation (determining the amount of the employee's monthly pension check). USERRA applies to plans sponsored by more than one employer as well as single employer plans. USERRA also applies to pension plans established by State and local governments. Also, an employee who would have become eligible to participate in a pension plan during that individual's time in the service should, upon reemployment, be placed in the plan retroactive to the date of initial eligibility. If the employer contribution is contingent on the employee's contribution, then the employee must make his or her contribution before the employer is obligated to make its contribution.

NATURE OF PLAN: Congress made it clear that differences between pension plans (e.g., defined benefit, defined contribution, and sometimes, a profit-sharing plan) do not affect the overall nature of the plan as a reward for length of service, rather than a short-term reward for work performed (i.e., a fringe benefit).

DOCUMENTATION: Normally an employer is not permitted to delay reinstatement of employment because of any lack of service documentation. If the individual is absent from the position of employment for a period of service of more than 90 days, the employer may require documentation before treating the employee as not having incurred a break in service for pension purposes. As with reemployment, an employer may not demand documentation that does not exist or is not readily available, and may request it only to verify that the application for reinstatement is timely, that the service limits in the law were not exceeded, and that the individual's release from service was not under any of the instances listed in section 4304 of USERRA.

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