Many churches have received ominous and unsolicited advertisements warning them to begin displaying workplace posters or face dire consequences. These advertisements have created considerable confusion and apprehension among church leaders. Are churches required to display posters? If so, which ones? And, what are the penalties for noncompliance?
This article is the third in a series that addresses the application of various poster requirements to churches under both federal and state law.
Poster Requirements Under Federal Law
In the previous two issues of Church Treasurer Alert! we addressed poster requirements under the following federal laws:
- Fair Labor Standards Act (the minimum wage and overtime law)
- Title VII of the Civil Rights Act of 1964 and other federal employment laws
- Employee Polygraph Protection Act
- Occupational Safety and Health Act
- Family Leave Act
In this issue of Church Treasurer Alert! we will address the poster requirement under the Uniformed Services Employment and Reemployment Rights Act.
Key point. There are additional poster requirements for federal contractors. While most churches are not federal contractors, some are.
Uniformed Services Employment and Reemployment Rights Act
The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to persons who perform work in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work is considered “service in the uniformed services.”
Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size. Religious employers are not exempt.
In general, an employer must reemploy service members returning from a period of service in the uniformed services if those service members meet five criteria: (1) the person must have held a civilian job; (2) the person must have given notice to the employer that he or she was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable; (3) the cumulative period of service must not have exceeded five years; (4) the person must not have been released from service under dishonorable conditions; and (5) the person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.
USERRA establishes a five-year “cumulative total” on military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training.
Key point. USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy’s nuclear power program are required to serve six years).
Employers are required to display a poster explaining the rights, benefits, and obligations of employees and employers under the law. The official USERRA poster published by the Department of Labor contains the following text:
USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.
You have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and:
- you ensure that your employer receives advance written or verbal notice of your service;
- you have five years or less of cumulative service in the uniformed services while with that particular employer;
- you return to work or apply for reemployment in a timely manner after conclusion of service; and
- you have not been separated from service with a disqualifying discharge or under other than honorable conditions.
If you are eligible to be reemployed, you must be restored to the job and benefits you would have attained if you had not been absent due to military service or, in some cases, a comparable job.
RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION
- are a past or present member of the uniformed service;
- have applied for membership in the uniformed service; or
- are obligated to serve in the uniformed service;
then an employer may not deny you:
- initial employment;
- retention in employment;
- promotion; or
- any benefit of employment
because of this status.
In addition, an employer may not retaliate against anyone assisting in the enforcement of USERRA rights, including testifying or making a statement in connection with a proceeding under USERRA, even if that person has no service connection.
HEALTH INSURANCE PROTECTION
- If you leave your job to perform military service, you have the right to elect to continue your existing employer-based health plan coverage for you and your dependents for up to 24 months while in the military.
- Even if you don’t elect to continue coverage during your military service, you have the right to be reinstated in your employer’s health plan when you are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries.
The official USERRA poster can be downloaded or ordered on the Department of Labor website, without charge. There are no special exceptions for religious employers under USERRA, but the so-called “ministerial exception” may prevent the application of this law to ministers. No court has addressed this issue directly.
The official poster contains the following disclaimer that would cover the potential application of the ministerial exception: “The rights listed here may vary depending on the circumstances.”
Next month’s edition of Church Treasurer Alert! will address penalties for failing to display a required workplace poster, commercially available posters, and state poster requirements.
This article first appeared in Church Treasurer Alert, September 2006.