U.S. Military Reservists: Job and Benefit Protection

    [:en]What is the Uniformed Services Employment and Re-Employment Rights Act?[:zh]什么是服役军人Uniformed Services 雇佣和退伍军人复业Re-Employment权益法?[:]

    [:en]

    The Uniformed Services Employment and Re-Employment Rights Act (the “Reservists Act”) is the federal law that provides job and benefit protection for U.S. Military Reservists. Congress enacted this law to encourage people to become reservists by minimizing the disruption to the reservist who must leave his/her job when called into service.

    [:zh]服役军人(Uniformed Services)和退伍军人复业(Re-Employment)僱佣权益法(简称后备役军人the Reservists Act) 是属於联邦法例,目的是为美国的后备役军人提供工作及福利保障。国会通过这条法例,是要鼓励民众成为後备役军人应徵入伍时,减低对失去工作的忧虑。[:]

    [:en]How do I keep my job if I am a Reservist and called to active-duty?[:zh]如果我是後备役军人营及将应徵入伍,应该如何保留目前的工作? [:]

    [:en]

    Notice

    You should give your employer notice of the need for leave and intent to return. Notification may be either oral or written. However, if you are “shipped out” before you are able to give adequate notice to your employer the notice requirement may be delayed or waived.

    Return to Work

    Depending on the length of the active-duty service, you are required to return promptly to work after the active service is completed. If you are in service and absent from work less than 31 days, you must return to work the first full day following completion of service, not including time to travel home and an eight-hour rest period. If you are absent from work between 31-180 days, you must submit an application for re-employment within 14 days of the completion of military service. If you are absent from work more than 180 days, you must submit an application for re-employment within 90 days of the completion of military service. (Note: Since reservists must be rehired, the “application” is actually a notice of an intent to return to work rather than a typical new job application that carries a risk of rejection.)

    [:zh]通知

    你应该通知僱主你的出发日期及复职期,这项通知可以是书面或口头形式。但是,如果在你能有足够时间通知僱主前,你已随军队转移到别处,那麽这项通知要求可以延期或免除。

    复职

    在退伍後,你应尽快重返公司报到,该什么时候要报到是以你服役的时间而定。如果你离职时间少於31天,在退伍後的第一天(不包括旅途时间及 8 小时休息),你应该回公司报到。如果你离职时间是31-180天,在退伍後的14天内,你要向公司递交退伍复业re-employment申请表。如果你离职时间超过180 天,在退伍後的90天内,你要向公司递交退伍复业申请表。注意:因为後备役军人必须重获聘用rehired,因此这份申请表实质是复职的通知,并非是新的工作申请表,这样就避免了工作申请被拒的风险。[:]

    [:en]When I return from military leave can my employer place me in a position lower than I was before I left?[:zh]当复职时,雇主可以安排我做比离职前较低的职位吗?[:]

    [:en]

    Normally, no. When you return from military leave, your employer is required to place you in the position you would have been in had you never left, as long as you are qualified for the job or can become qualified after reasonable efforts are made by your employer to help you become qualified. Also, you should receive any pay raises, promotions and seniority as if you never left.

    [:zh]通常是不可以。当你退伍复职时,只要你仍然符合或经僱主适度的协助後令你能符合原工作岗位的要求,你的职位就应该和离职前一样。同时,所有加薪、升职及工龄都要按你一直在职的方式计还给你。[:]

    [:en]Do I have any protection against termination once I return to my job after military leave?[:zh]当我退伍复职後,是否有不被解雇的保障?[:]

    [:en]

    Yes. Although most employees are “at-will,” meaning they can be fired for any reason as long as it is not discriminatory (e.g., on the basis of race, sex, religion, national origin, etc.) or for reasons in violation of public policy (e.g., reporting an unsafe work condition), military service may change your “at-will” employment status. If your military service was more than 30 days but less than 181 days, for the 180 days after you begin work again your employer can fire you only if it has a good reason. If you served more than 180 days, then for the one year after you begin work again your employer can fire you only for a good reason.

    [:zh]是。即使大部份的僱员属“随意” at-will 僱用性质,意恩指在不违背歧视(例如基於种族、性别、信仰、原国藉等因素)及没有违反公共政策(例如工作环境不合安全规定)的原则下,他们会随时被解僱。但参军可以改变这种“随意”僱用性质。如果你服役时间是多於30天但少於180天,在你复职後的180天内,僱主只能在合理原因good reason下才能将你解僱。如果你服役超过 180 天,那麽在你复职一年内,你的僱主只能在有合理原因下才能将你解僱。[:]

    [:en]My employer says that it will be too costly to rehire me. What can I do?[:zh]如果雇主说重新聘用我的成本太昂贵,我该怎么办?[:]

    [:en]

    If your employer can show that it will suffer “undue hardship,” (not just mere inconvenience) because of significant difficulty or expense, it is excused from having to rehire you. Whether or not something is an undue hardship depends on many factors (e.g., the employer would go out of business) that tend to be difficult for employers to prove.

    [:zh]如果你的僱主能证明重新聘用你,会令公司经营困难或成本大涨而“过分的困难”undue hardship,(“不方便”不是一个充足的理由), 它可以不再重新聘用你。是否构成公司的过分困难取决于众多因素(例如公司倒闭),而僱主通常很难证明到这一点。[:]

    [:en]What if I become disabled in the course of my military service?[:zh]如果服役时伤残,我有什么权益?[:]

    [:en]

    The Reservists Act requires your employer to provide you with reasonable accommodations if you incur any service-related disabilities regardless of whether the disability would be protected under the ADA (Americans with Disabilities Act) or its California counterpart, the FEHA (Fair Employment and Housing Act). If you do not qualify for the position that you would have had due to service-related disabilities, your employer must transfer you to another position with equal seniority, status and pay, if such position is available.

    [:zh]根据后备役军人法,如果你是因为服役而伤残,无论你的伤残情况是否受到ADA (美国残障人法案American’s with Disabilities Act) 、 或加州伤残法例、以及FEHA(平等职业及房屋法 )的保护,你的僱主都要为你提供合理的工作调整。如果你因为服役伤残而不适合原来的职位,在有另一份工作空缺的情况下,你的僱主必须为你调职,新工作的工龄、职位及薪酬都要等同原有的工作。[:]

    [:en]Is my employer required to pay me while I am on a military leave of absence?[:zh]在我服役离职期间,雇主是否要支付薪酬给我?[:]

    [:en]

    Although some employers may provide paid military leave days, they are not required to do so. However, if your employer chooses to pay an employee while on military leave, it is required to uniformly extend that policy to all reservists.

    [:zh]虽然有些僱主会提供有薪服役福利,但法律并没有这个要求。但是,如果你的僱主决定为僱员提供有薪服役福利,公司所有的后备服役军人就能享受这种福利。[:]

    [:en]Can my employer require me to use my vacation time while I am on a military leave of absence?[:zh]雇主可不可以将我的服役离职期当成放有薪假?[:]

    [:en]

    No. However, your employer cannot stop you from using your vacation time if you choose to do so.

    [:zh]不可以。但是,如果你自愿作这个选择,僱主无权阻止。[:]

    [:en]Am I still covered by my employer’s health insurance while on military duty?[:zh]在服役期,我是否仍然受保於雇主提供的医疗保险?[:]

    [:en]

    Your employer is required to continue your health insurance for 30 days while you are on military duty. After 30 days, a federal law known as “COBRA” requires your employer to continue your health insurance coverage for up to 18 months but can require that you pay up to 102% of its full premium under the plan.

    If you are on active duty for more than 30 days, you and your dependents should be covered by military health care. For more information on these programs contact your military unit.

    Finally, another law known as the Health Insurance Portability and Accountability Act (HIPAA) may give you and your family rights to enroll in another group health plan coverage such as your spouse’s employer’s group health plan. You have this opportunity to enroll regardless of the other plan’s otherwise applicable enrollment periods. To qualify, you must request enrollment in the other plan within 30 days of losing eligibility for coverage under your current employer’s plan. After that special enrollment is requested, you have to be covered in the other plan no later than the first day of the first month following your request for enrollment. If you will be on active duty more than 30 days in your current plan, coverage in another plan through special enrollment may be cheaper than your COBRA continuation coverage because the other employer often pays a part of the premium.

    [:zh]根据法例,在你服役期的首30天,僱主要为你提供医疗福利。在30天後,根据联邦法例,僱主要为你提供COBRA医疗福利,期限是18个月,但你要支付最多102%的全额保费。

    如果你服役时间是超过30天,你和你的受抚养人应该受保於军方的保健计划。有关的详情,请向你的服役军事处查询。

    最后,根据别一条HIPAA保健法,你及你的家人有权加入其他保健计划,例如配偶公司提供的团体保健计划。你无需等到每年一次的加入计划期(enrollment periods)才加入。在你失去现有僱主保健计划的30天内,你要作出这项要求才能确保你的受保资格。在你作出特别加入要求之後的第一个月首天,你就应该得到受保。如果你服务超过30天,你加入其他僱主团体计划的保费,应该比你选择原公司提供的COBRA计划保费便宜,因为其他僱主团体计划的部份保费会由该僱主承担。[:]

    [:en]How is my pension plan affected by military leave?[:zh]在服役期间,我的退休基金计划会有什么影响?[:]

    [:en]

    Your pension plan benefits should not be affected because of military leave. Your pension credit should be as it would have been had you never left. If you are required to make employee contributions to your pension plan, you must be given the opportunity to make up any missed contributions over a period up to three times the length of the military service but not more than five years.

    [:zh]你的退休基金计划不应该因为服役而受影响。你的退休基金积分应该以你一直在职的形式正常滚存。如果你要为退休基金计划供款,你可以补偿供款,补偿供款的期限是你服役期的3倍时间,但不能多於5年。[:]

    [:en]What remedies do I have if my employer violates my rights under the Reservists Act?[:zh]如果雇主无视后备役军人法,侵犯了我的权益,我该怎么办?[:]

    [:en]

    You may file a complaint with the Department of Labor or file a court action directly. If you employer violated the Reservists Act, it may be liable for various damages, including, lost wages, attorney fees, expert witness fees and other costs incurred from litigation. The Reservists Act has no statute of limitations (a certain length of time an employee has to bring a claim), but if you intend to sue your employer for a violation of the Reservists Act, you should do so as soon as possible to preserve the evidence in the case that may be helpful to you.

    [:zh]你可以到劳工部申诉或直接到法院起诉该僱主。如果你的僱主违反了后备役军人法,它需要作出几项的损失赔偿,包括工资损失、律师费、专家证人费以及有关的诉讼费。后备役军人法并没有申诉期限(指要在一段期限内提出申诉),但如果你想对违反后备役军人法的僱主提出起诉,越早采取行动越对你有利。[:]

DISCLAIMER

This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, the Legal Aid Society–Employment Law Center cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.