Pursuant to USERRA, 38 U.S.C. § 4318, employers must make pension contributions on behalf of employees covering the periods when they take leave to serve in the United States Armed Forces. USERRA provides that an employee who returns from military leave is entitled to receive a lump sum pension contribution from his or her employer to cover the period of his or her military leave. USERRA provides two methods for calculating the employee’s compensation during the military leave: (1) when an employee’s wages would be fixed during the period of leave, the employer should determine the employee’s compensation at the rate the employee would have received but for the leave; (2) when an employee’s compensation would not have been fixed, USERRA requires that the employer determine compensation on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding the military leave. USERRA protects both traditional pension benefits as well as other retirement benefits (such as those under 401k plans).

Under USERRA, 38 U.S.C. § 4316, an employee who takes leave to serve in the armed forces shall be permitted to use any accrued vacation or paid sick leave before such service. An employer may not require such an employee to use his/her vacation or paid sick leave during his/her service in the armed forces. Moreover, when an employee returns from military leave, he or she is entitled to the rights and benefits that he or she would have attained if he or she had remained continuously employed with the company.

We will want to obtain some information to investigate your claim, including copies of your payroll stubs, military leave order, and copies the policy or plans regarding benefits. If you do not have copies of the employee benefit plans or policies, we can assist you in making a request for copies. There is no charge to you for us to assist you in making this request or for us to evaluate your case.