The U.S. Labor Department has released its final USERRA regulations, and this is a good time for employers to update their South Dakota USERRA posters.
USERRA regulations are designed to offer job protection for returning veterans as well as Reserve and National Guard members. The new regulations include federal government employees among those entitled to file claims for possible violations of the USERRA regulations. The law requires employers to display accurate USERRA posters even if no veterans are employed.
Government employees may now file claims, but the process differs from the one used by other returning veterans. The federal government or U.S. Postal Service employee who wishes to file a claim will follow the same first step as non-governmental employees. If resolution cannot be reached at that level, the net step is a review by the Merit Systems Protection Board. The board may award damages. Employees who work for federal intelligence agencies turn to their agency’s Inspector General to follow up their claims.
All workers, government or non-government, start with the same step. That step is filing a claim under USERRA – the Uniformed Services Employment and Reemployment Rights Act of 1994. The claim is taken up by the Veterans Employment and Training Service or VETS, which is a division of the Labor Department. Based on the facts of the case, VETS issues a finding. Most of the time, if a returning veteran was in military service for less than five years, he or she will get a favorable finding. In other words VETS will declare them eligible for reemployment. Most employers will rehire an employee based on that finding.
At this point, the claims process differs for governmental and non-governmental employees. The non-governmental worker returning from military duty may now take the case to the Department of Justice. The Justice Department will take it to federal District Court, which could award damages. There is no cost to the employee.
All employers, both nonprofit and government and for profit, must report their new hires to the state of South Dakota. There are few exceptions to the rule, and most all employees are included in the labor law’s scope, including full time employees, part time employees, permanent employees, and temporary employees—even employees who only ended up working for you for a couple of hours.
The basic rule to follow in this case to make sure that a new employee needs to be reported by you is to see if they need to submit a W-2 tax form to you. If they do, most likely you will also need to fill out a new hire report form and send it in to the state of South Dakota.
As I’ve mentioned in past entries on this blog about other states, even re-hires are included in this. A re-hire is anybody who used to work for you, but for some reason—either they got fired, laid off, quit, or took a leave of absence—they left the job. But now they have returned, at least 30 days after they left in the first place. In that case, they are considered a re-hire in the state of South Dakota and you have to report them again to the proper authorities.
South Dakota requires the same basic information about new hires and re-hires that other states do that we have looked at already. That includes the name of the new hire or re-hire, their address, and the social security number of the new hire or re-hire. The state of South Dakota also requires that you submit with every new hire report your company’s name, your company’s address, and your company’s federal employer number.
All of this info has to be send in to the state within 20 days of the start date of the new hire or re-hire.