Month: October 2018

When Do You Have to Go Through Probate?

~ April Smith ~ Leave a comment

When Do You Have to Go Through Probate

Leaving a will behind when you die is the responsible thing to do. But leaving a will, doesn’t always mean that there’s no need for probate. An estate may undergo formal probate for many reasons including when a will is contested, unclear, or invalid, or when the assets are held only in the deceased’s name. And when there’s no will, probate is often required to oversee the distribution of the deceased’s property.

As a general rule, you’ll want to avoid probate if possible. Unfortunately, there are situations where you don’t have a choice. Let’s explore those situations that determine when you have to go through probate.

When There’s A Will There’s Usually Probate

Determining if a will needs to go through probate depends on the laws of your state and the property you hold at death. Some states, such as Washington, do not require probate to be filed. Other states base the need for probate on the value of the estate. Common situation when you have to go through probate with a will include:

  • Will Contest: Disputes can arise because family members are unhappy with the deceased’s estate plan. Death can cause old family tensions to resurface causing disputes over insignificant family property. A beneficiary may contest the validity of a will’s construction. If someone who could take under the will protests the division of property, you must probate the will. All challenges are handled in probate court.
  • Value of the Estate: Smaller is better when it comes to probate. It’s common practice to allow estates falling below a predetermined value to avoid probate. In California, estates valued over $150,000, and that don’t qualify for any exemptions, must go to probate. In Oklahoma, a probate is required on an estate valued over $20,000.
  • Assets Held Only in Deceased’s Name: Probate is not just about distributing property. It also initiates the legal transfer of title to that property. If a person dies and owns real estate, regardless of value, either in his/her name alone or as a “tenant in common” with another, a probate proceeding is typically required to transfer the property. However, many states offer a quicker, less expensive probate-alternatives for transferring title to cars.

When There’s No Will You Really Need Probate

When a person dies without a will, they are said to have died “intestate”. The laws of the state where you reside will determine how your property is distributed upon your death. However, probate administration when there’s no will is similar to when there is one. When you die, your property is classified as either probate property or non-probate property.

  • Determining the Estate’s Heirs: If no Will exists, the property is divided among the person’s heirs. In California, if the person has a spouse and or children, the property first goes to them. If there is no spouse or children, the property goes to the person’s next nearest relatives. The laws of intestate succession are very state specific.
  • Transfer of Assets: When there is no will, probate is frequently required to determine the deceased owner’s probate assets, assess their value and distribute them to creditors and heirs. It’s not uncommon for property transferred under intestacy to be counter to what the deceased would have chosen if living. Probate transfer title to the heirs with the closest family relationship to the deceased. Special provisions, such as the small estate exemption, also apply to an estate without will.

Free Consultation with a Probate Lawyer

If you are here, you probably have a probate issue you need help with, call Ascent Law for your free probate consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

At What Time of Year is Divorce Most Likely?

~ April Smith ~ Leave a comment

At What Time of Year is Divorce Most Likely

A recent study of divorce filings in Utah indicates there are two particular months out of the year at which divorce filings peak: March and August. But January and February are also higher than normal.

Researchers have presented a number of hypotheses as to why people are more likely to get divorced in these months. The most commonly accepted reason is that these months typically come after winter or summer holidays. Many couples might hope the holiday season in the winter or a big summer vacation will mend their relationship and allow them to get “back to normal,” but this mindset tends to lead to disappointment. Divorce is sometimes the logical next step.

In the study, researchers examined divorce filings in Washington between 2001 and 2015. filings steadily increased by about 33 percent from December to March. In Salt Lake County, for example, there was an average of 430 filings each December, with that number jumping to an average of 520 in March.  In Utah, in 2018, there are literally thousands of cases that have been filed.  In the Third District Court, there has been more than 6,000 family law cases.

The general consensus is that people make the decision to get divorced around the holidays in December and January, but then wait a couple of months to get their finances in order and consult a family law attorney before formally moving ahead. This would explain why the peak falls in March, rather than in January or December.

Researchers also noticed a spike of divorce filings in the month August. Researchers suspect that couples may be waiting until after their family vacations are over, or that they may wish to get the process started before their kids go back to school.

All of these seasonal divorce filing patterns were consistent with research performed in other states, and so these trends may very well be present nationwide.

Free Consultation with Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Employer Responsibilities for Worker’s Compensation

~ April Smith ~ Leave a comment

Employer Responsibilities for Worker's Compensation

In most states, including Utah, employers are required to purchase insurance for their employees from a workers’ compensation insurance carrier. In some states, larger employers who are clearly solvent are allowed to self-insure, or act as their own insurance companies, while smaller companies (with fewer than three or four employees) are not required to carry workers’ compensation insurance at all. When a worker is injured, his or her claim is filed with the insurance company, or self-insuring employer, who pays medical and disability benefits according to a state-approved formula.

Unless they fall within limited, exempt categories, employers without workers’ compensation insurance are subject to fines, criminal prosecution, and civil liability.

Penalties for Not Having Worker’s Comp

Failure to provide workers’ compensation insurance coverage can result in:

  • Fines;
  • Criminal prosecution;
  • Personal liability of the employer for any workers’ compensation benefits due injured workers; and,
  • An employee’s exercising the option to sue the employer rather than file a compensation claim.

Duties of Employers

In addition to providing workers’ compensation coverage, in most states, employers must perform some, if not all, of the following duties:

  • Post a notice of compliance with workers’ compensation laws in a conspicuous place at each job site;
  • Provide immediate emergency medical treatment for employees who sustain on-the-job injuries;
  • Furnish further medical attention if an injured worker is unable to select a doctor or advises the employer in writing of a desire not to do so;
  • Complete a report of the injury and mail it to the nearest workers’ compensation board office. A copy of the report should also be mailed to the employer’s insurance company. An employer who refuses or neglects to make an injury report may be guilty of a misdemeanor, punishable by a fine;
  • Make a written report of every accident resulting in personal injury that causes a loss of time from regular duties beyond the working day or shift on which the accident occurred or that requires medical treatment beyond first aid or more than two treatments by a doctor or persons rendering first aid;
  • Comply with all requests for further information regarding injured workers by the workers’ compensation board or the insurance company, such as statements of the employee’s earnings before and after the accident, reports of the date of the employee’s return to work, or other reports that may be required to determine the employee’s work status following the injury.

Employer’s Duty Not to Retaliate

Employers often appear to frown on employees who file workers’ compensation benefit claims, and some blatantly discriminate against such employees.  To protect employees from employers who discriminate against, harass, or unjustly terminate injured employees, many states prohibit employers from punishing, discriminating against, or discharging employees who exercise their rights under workers’ compensation laws, and allow employees to bring civil actions against their employers for the tort of “retaliatory discharge.”

If an employee believes he or she has been discriminated against or discharged in retaliation for exercising rights under workers’ compensation laws, he or she may have a claim against his or her employer for retaliatory discharge.

Besides termination, retaliation may take the form of more subtle types of discriminatory treatment, such as demotion or salary reduction. Injured employees are protected from discriminatory conduct immediately after an injury and before a formal workers’ compensation claim is filed. An employee’s cause of action may be successful even though all the employee did was give notice to the employer of a claim.

Free Consultation with a Utah Employer Lawyer

If you are here, you probably have a business law or employment law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We help businesses and business owner navigate the law. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Can I Write My Own Divorce Settlement?

~ April Smith ~ Leave a comment

Can I Write My Own Divorce Settlement

In many situations, divorcing couples can reach agreements outside of court and resolve their issues without much need for mediation.

The answer to the question, can I write my own divorce settlement is yes, of course you can.  The problem is that if you do, you might forget something.  Or you may word it in such a way that has a different legal meaning than a common meaning.  Also, the court may reject it because its not done the way the court wants to see it done.  For this and many other reasons, you shouldn’t ever do it.

You do have the legal ability to write your own divorce settlement, but it is almost never advisable to do so. Many issues related to your divorce require a high level of knowledge about the practice area, which only an experienced family law attorney will have. Even if you do not retain an attorney for the entire divorce process, you should at the very least work with a lawyer to draft your divorce settlement agreement.

The forms you need to fill out

There are many divorce settlement forms you can find online, some of which will be adequate for your case, others of which will not. An attorney will be best positioned to determine which forms you need to fill out and what you need to include in them.

Settlement preparation

Before you begin the process of negotiating a settlement with your spouse, you need to be fully armed with all the pertinent facts surrounding your divorce, including a full list of assets and values, income and debt information and anything else that is financially relevant.

You will be much better prepared for the settlement process if you work with an attorney who has experience in handling divorce negotiations. The attorney will know exactly what information you need to gather, what types of initial offers are reasonable and how much you should be willing to compromise or negotiate from that initial offer. Without the assistance of an attorney, you risk ending up with a bad deal.

Written agreements

Once the time comes to write your settlement agreement, you could end up leaving legal loopholes in the document if you do not have the expertise needed to create a thorough agreement. Attorneys are highly skilled in creating these written agreements that capture all the most important details and do not leave anything up for debate.

Getting Through the Holidays as a Divorced Parent

Getting through the holidays as a divorced parent with children can be a struggle. However, if you can find the right balance in everything you do, this time of the year does not need to be so stressful. Below are a few tips to help you through the holidays:

  • Prepare for the challenge: Accept that it may be difficult to deal with the challenges of the holiday season, especially if you’ll be without your children for a few days. Getting yourself emotionally prepared ahead of time can help you stay collected when the holidays arrive.
  • Acknowledge your kids’ feelings: You are not the only one who is dealing with the emotional challenges of dividing time over the holidays. Your children are likely to have complicated emotions, as well. Have conversations with them ahead of time so they know what to expect over the holidays. Honestly answer any questions they have.
  • Be flexible: When dealing with the other parent, put your emotions aside as much as possible to find timesharing agreements that work for the two of you and are in the best interests of your kids.
  • Budget: You and the other parent should agree on a budget for holiday spending. Getting into a situation in which you are each trying to “outdo” the other in terms of gifts is unfair — especially to the children.
  • Establish new traditions: Although you can attempt to maintain old traditions as much as possible, it can be a lot of fun to find new ways to celebrate that will stand the test of time.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Can I Write My Own Divorce Settlement?

~ April Smith ~ Leave a comment

Can I Write My Own Divorce Settlement

In many situations, divorcing couples can reach agreements outside of court and resolve their issues without much need for mediation.

The answer to the question, can I write my own divorce settlement is yes, of course you can.  The problem is that if you do, you might forget something.  Or you may word it in such a way that has a different legal meaning than a common meaning.  Also, the court may reject it because its not done the way the court wants to see it done.  For this and many other reasons, you shouldn’t ever do it.

You do have the legal ability to write your own divorce settlement, but it is almost never advisable to do so. Many issues related to your divorce require a high level of knowledge about the practice area, which only an experienced family law attorney will have. Even if you do not retain an attorney for the entire divorce process, you should at the very least work with a lawyer to draft your divorce settlement agreement.

The forms you need to fill out

There are many divorce settlement forms you can find online, some of which will be adequate for your case, others of which will not. An attorney will be best positioned to determine which forms you need to fill out and what you need to include in them.

Settlement preparation

Before you begin the process of negotiating a settlement with your spouse, you need to be fully armed with all the pertinent facts surrounding your divorce, including a full list of assets and values, income and debt information and anything else that is financially relevant.

You will be much better prepared for the settlement process if you work with an attorney who has experience in handling divorce negotiations. The attorney will know exactly what information you need to gather, what types of initial offers are reasonable and how much you should be willing to compromise or negotiate from that initial offer. Without the assistance of an attorney, you risk ending up with a bad deal.

Written agreements

Once the time comes to write your settlement agreement, you could end up leaving legal loopholes in the document if you do not have the expertise needed to create a thorough agreement. Attorneys are highly skilled in creating these written agreements that capture all the most important details and do not leave anything up for debate.

Getting Through the Holidays as a Divorced Parent

Getting through the holidays as a divorced parent with children can be a struggle. However, if you can find the right balance in everything you do, this time of the year does not need to be so stressful. Below are a few tips to help you through the holidays:

  • Prepare for the challenge: Accept that it may be difficult to deal with the challenges of the holiday season, especially if you’ll be without your children for a few days. Getting yourself emotionally prepared ahead of time can help you stay collected when the holidays arrive.
  • Acknowledge your kids’ feelings: You are not the only one who is dealing with the emotional challenges of dividing time over the holidays. Your children are likely to have complicated emotions, as well. Have conversations with them ahead of time so they know what to expect over the holidays. Honestly answer any questions they have.
  • Be flexible: When dealing with the other parent, put your emotions aside as much as possible to find timesharing agreements that work for the two of you and are in the best interests of your kids.
  • Budget: You and the other parent should agree on a budget for holiday spending. Getting into a situation in which you are each trying to “outdo” the other in terms of gifts is unfair — especially to the children.
  • Establish new traditions: Although you can attempt to maintain old traditions as much as possible, it can be a lot of fun to find new ways to celebrate that will stand the test of time.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Can I Write My Own Divorce Settlement?

~ April Smith ~ Leave a comment

Can I Write My Own Divorce Settlement

In many situations, divorcing couples can reach agreements outside of court and resolve their issues without much need for mediation.

The answer to the question, can I write my own divorce settlement is yes, of course you can.  The problem is that if you do, you might forget something.  Or you may word it in such a way that has a different legal meaning than a common meaning.  Also, the court may reject it because its not done the way the court wants to see it done.  For this and many other reasons, you shouldn’t ever do it.

You do have the legal ability to write your own divorce settlement, but it is almost never advisable to do so. Many issues related to your divorce require a high level of knowledge about the practice area, which only an experienced family law attorney will have. Even if you do not retain an attorney for the entire divorce process, you should at the very least work with a lawyer to draft your divorce settlement agreement.

The forms you need to fill out

There are many divorce settlement forms you can find online, some of which will be adequate for your case, others of which will not. An attorney will be best positioned to determine which forms you need to fill out and what you need to include in them.

Settlement preparation

Before you begin the process of negotiating a settlement with your spouse, you need to be fully armed with all the pertinent facts surrounding your divorce, including a full list of assets and values, income and debt information and anything else that is financially relevant.

You will be much better prepared for the settlement process if you work with an attorney who has experience in handling divorce negotiations. The attorney will know exactly what information you need to gather, what types of initial offers are reasonable and how much you should be willing to compromise or negotiate from that initial offer. Without the assistance of an attorney, you risk ending up with a bad deal.

Written agreements

Once the time comes to write your settlement agreement, you could end up leaving legal loopholes in the document if you do not have the expertise needed to create a thorough agreement. Attorneys are highly skilled in creating these written agreements that capture all the most important details and do not leave anything up for debate.

Getting Through the Holidays as a Divorced Parent

Getting through the holidays as a divorced parent with children can be a struggle. However, if you can find the right balance in everything you do, this time of the year does not need to be so stressful. Below are a few tips to help you through the holidays:

  • Prepare for the challenge: Accept that it may be difficult to deal with the challenges of the holiday season, especially if you’ll be without your children for a few days. Getting yourself emotionally prepared ahead of time can help you stay collected when the holidays arrive.
  • Acknowledge your kids’ feelings: You are not the only one who is dealing with the emotional challenges of dividing time over the holidays. Your children are likely to have complicated emotions, as well. Have conversations with them ahead of time so they know what to expect over the holidays. Honestly answer any questions they have.
  • Be flexible: When dealing with the other parent, put your emotions aside as much as possible to find timesharing agreements that work for the two of you and are in the best interests of your kids.
  • Budget: You and the other parent should agree on a budget for holiday spending. Getting into a situation in which you are each trying to “outdo” the other in terms of gifts is unfair — especially to the children.
  • Establish new traditions: Although you can attempt to maintain old traditions as much as possible, it can be a lot of fun to find new ways to celebrate that will stand the test of time.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Can I Write My Own Divorce Settlement?

~ April Smith ~ Leave a comment

Can I Write My Own Divorce Settlement

In many situations, divorcing couples can reach agreements outside of court and resolve their issues without much need for mediation.

The answer to the question, can I write my own divorce settlement is yes, of course you can.  The problem is that if you do, you might forget something.  Or you may word it in such a way that has a different legal meaning than a common meaning.  Also, the court may reject it because its not done the way the court wants to see it done.  For this and many other reasons, you shouldn’t ever do it.

You do have the legal ability to write your own divorce settlement, but it is almost never advisable to do so. Many issues related to your divorce require a high level of knowledge about the practice area, which only an experienced family law attorney will have. Even if you do not retain an attorney for the entire divorce process, you should at the very least work with a lawyer to draft your divorce settlement agreement.

The forms you need to fill out

There are many divorce settlement forms you can find online, some of which will be adequate for your case, others of which will not. An attorney will be best positioned to determine which forms you need to fill out and what you need to include in them.

Settlement preparation

Before you begin the process of negotiating a settlement with your spouse, you need to be fully armed with all the pertinent facts surrounding your divorce, including a full list of assets and values, income and debt information and anything else that is financially relevant.

You will be much better prepared for the settlement process if you work with an attorney who has experience in handling divorce negotiations. The attorney will know exactly what information you need to gather, what types of initial offers are reasonable and how much you should be willing to compromise or negotiate from that initial offer. Without the assistance of an attorney, you risk ending up with a bad deal.

Written agreements

Once the time comes to write your settlement agreement, you could end up leaving legal loopholes in the document if you do not have the expertise needed to create a thorough agreement. Attorneys are highly skilled in creating these written agreements that capture all the most important details and do not leave anything up for debate.

Getting Through the Holidays as a Divorced Parent

Getting through the holidays as a divorced parent with children can be a struggle. However, if you can find the right balance in everything you do, this time of the year does not need to be so stressful. Below are a few tips to help you through the holidays:

  • Prepare for the challenge: Accept that it may be difficult to deal with the challenges of the holiday season, especially if you’ll be without your children for a few days. Getting yourself emotionally prepared ahead of time can help you stay collected when the holidays arrive.
  • Acknowledge your kids’ feelings: You are not the only one who is dealing with the emotional challenges of dividing time over the holidays. Your children are likely to have complicated emotions, as well. Have conversations with them ahead of time so they know what to expect over the holidays. Honestly answer any questions they have.
  • Be flexible: When dealing with the other parent, put your emotions aside as much as possible to find timesharing agreements that work for the two of you and are in the best interests of your kids.
  • Budget: You and the other parent should agree on a budget for holiday spending. Getting into a situation in which you are each trying to “outdo” the other in terms of gifts is unfair — especially to the children.
  • Establish new traditions: Although you can attempt to maintain old traditions as much as possible, it can be a lot of fun to find new ways to celebrate that will stand the test of time.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Can I Write My Own Divorce Settlement?

~ April Smith ~ Leave a comment

Can I Write My Own Divorce Settlement

In many situations, divorcing couples can reach agreements outside of court and resolve their issues without much need for mediation.

The answer to the question, can I write my own divorce settlement is yes, of course you can.  The problem is that if you do, you might forget something.  Or you may word it in such a way that has a different legal meaning than a common meaning.  Also, the court may reject it because its not done the way the court wants to see it done.  For this and many other reasons, you shouldn’t ever do it.

You do have the legal ability to write your own divorce settlement, but it is almost never advisable to do so. Many issues related to your divorce require a high level of knowledge about the practice area, which only an experienced family law attorney will have. Even if you do not retain an attorney for the entire divorce process, you should at the very least work with a lawyer to draft your divorce settlement agreement.

The forms you need to fill out

There are many divorce settlement forms you can find online, some of which will be adequate for your case, others of which will not. An attorney will be best positioned to determine which forms you need to fill out and what you need to include in them.

Settlement preparation

Before you begin the process of negotiating a settlement with your spouse, you need to be fully armed with all the pertinent facts surrounding your divorce, including a full list of assets and values, income and debt information and anything else that is financially relevant.

You will be much better prepared for the settlement process if you work with an attorney who has experience in handling divorce negotiations. The attorney will know exactly what information you need to gather, what types of initial offers are reasonable and how much you should be willing to compromise or negotiate from that initial offer. Without the assistance of an attorney, you risk ending up with a bad deal.

Written agreements

Once the time comes to write your settlement agreement, you could end up leaving legal loopholes in the document if you do not have the expertise needed to create a thorough agreement. Attorneys are highly skilled in creating these written agreements that capture all the most important details and do not leave anything up for debate.

Getting Through the Holidays as a Divorced Parent

Getting through the holidays as a divorced parent with children can be a struggle. However, if you can find the right balance in everything you do, this time of the year does not need to be so stressful. Below are a few tips to help you through the holidays:

  • Prepare for the challenge: Accept that it may be difficult to deal with the challenges of the holiday season, especially if you’ll be without your children for a few days. Getting yourself emotionally prepared ahead of time can help you stay collected when the holidays arrive.
  • Acknowledge your kids’ feelings: You are not the only one who is dealing with the emotional challenges of dividing time over the holidays. Your children are likely to have complicated emotions, as well. Have conversations with them ahead of time so they know what to expect over the holidays. Honestly answer any questions they have.
  • Be flexible: When dealing with the other parent, put your emotions aside as much as possible to find timesharing agreements that work for the two of you and are in the best interests of your kids.
  • Budget: You and the other parent should agree on a budget for holiday spending. Getting into a situation in which you are each trying to “outdo” the other in terms of gifts is unfair — especially to the children.
  • Establish new traditions: Although you can attempt to maintain old traditions as much as possible, it can be a lot of fun to find new ways to celebrate that will stand the test of time.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Military Leave Law

~ April Smith ~ Leave a comment

Military Leave Law

The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) provides job protection to workers who serve in the military, typically those in the National Guard or military reserves. More specifically, USERRA prohibits employers from engaging in discriminating acts against employees who serve in the military and provides eligible service members with job reinstatement rights upon completion of military service. The law applies to all employers, but does not require the employer to pay the employee during military leave.

Military Leave Eligibility

The right to reinstatement in a civilian job applies to individuals who voluntarily or involuntarily serve in the military, or who have served in the military. All employers are required to comply with the law, regardless of size. USERRA benefits apply to the following type of uniformed service:

  • Active duty, including Reserve and National Guard duty
  • Active duty for training
  • Initial active duty for training
  • Inactive duty for training
  • Full-time National Guard duty

Reemployment Eligibility

When a service member returns from military leave, the guarantee of reemployment in a civilian job applies if:

  • The employee gave the employer advanced written or verbal notice of military service or training
  • The employee’s cumulative military leave does not exceed 5 years
  • The employee was discharged under honorable conditions
  • The employee applied for reemployment within the specified time

The USERRA provides exceptions to the five-year limitation when certain situations apply. For instance, this limitation is inapplicable when the service member is unable to obtain a release from service, must participate in necessary training, or the service occurs during a time of war or a national emergency. Also, employers are required to make every effort to provide reasonable accommodations for military service members with disabilities.

There are limited instances where an employer is not required to rehire a military service member returning from active duty. These include the following:

  • Changes in the workplace make it impossible (or nearly so) to reinstate the employee
  • Reinstatement would create an undue hardship for the employer (in the context of a disability, this could be the unavailability of a reasonable accommodation)
  • Employment of service member was so brief that there should be no reasonable expectation to return

Military Leave Benefits

The law protects a service member’s job status, pay, and benefits as if he or she was not away at active duty. For example, the service member who leaves for six months of active duty should get the same pay raise as his or her non-military peers (assuming performance levels and seniority are equal). Upon reemployment, the employer must:

  • Count the employee’s military leave toward seniority status: The service member is entitled to increased pay, promotions, benefits, and pension vesting as if continuously employed.
  • Provide training: If the employee is not qualified for the reinstatement position, the employer must make “reasonable efforts” to qualify the employee.
  • Not discharge the employee without cause: The law prohibits an employer from discharging an employee for 180 days if service was for 31 to 180 days or for one year if service exceeded 180 days.
  • Offer immediate reinstatement of health insurance coverage: The employer cannot impose a waiting period on health insurance coverage for the employee and the previously covered dependents of the employee.

State Military Leave Protection

Many states have military leave laws that protect workers that serve in a state militia, the National Guard, or as a reservist. Laws vary by state, but most prohibit discrimination against employees that serve in the military and entitle the worker to unpaid leave. Laws typically also provide reinstatement rights and protect the worker’s benefits. For example, Washington state law prohibits employers from denying employment, reemployment (after taking a leave for active duty service) or employment benefits to servicemembers because of their military association and obligations.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Military Leave Law

~ April Smith ~ Leave a comment

Military Leave Law

The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) provides job protection to workers who serve in the military, typically those in the National Guard or military reserves. More specifically, USERRA prohibits employers from engaging in discriminating acts against employees who serve in the military and provides eligible service members with job reinstatement rights upon completion of military service. The law applies to all employers, but does not require the employer to pay the employee during military leave.

Military Leave Eligibility

The right to reinstatement in a civilian job applies to individuals who voluntarily or involuntarily serve in the military, or who have served in the military. All employers are required to comply with the law, regardless of size. USERRA benefits apply to the following type of uniformed service:

  • Active duty, including Reserve and National Guard duty
  • Active duty for training
  • Initial active duty for training
  • Inactive duty for training
  • Full-time National Guard duty

Reemployment Eligibility

When a service member returns from military leave, the guarantee of reemployment in a civilian job applies if:

  • The employee gave the employer advanced written or verbal notice of military service or training
  • The employee’s cumulative military leave does not exceed 5 years
  • The employee was discharged under honorable conditions
  • The employee applied for reemployment within the specified time

The USERRA provides exceptions to the five-year limitation when certain situations apply. For instance, this limitation is inapplicable when the service member is unable to obtain a release from service, must participate in necessary training, or the service occurs during a time of war or a national emergency. Also, employers are required to make every effort to provide reasonable accommodations for military service members with disabilities.

There are limited instances where an employer is not required to rehire a military service member returning from active duty. These include the following:

  • Changes in the workplace make it impossible (or nearly so) to reinstate the employee
  • Reinstatement would create an undue hardship for the employer (in the context of a disability, this could be the unavailability of a reasonable accommodation)
  • Employment of service member was so brief that there should be no reasonable expectation to return

Military Leave Benefits

The law protects a service member’s job status, pay, and benefits as if he or she was not away at active duty. For example, the service member who leaves for six months of active duty should get the same pay raise as his or her non-military peers (assuming performance levels and seniority are equal). Upon reemployment, the employer must:

  • Count the employee’s military leave toward seniority status: The service member is entitled to increased pay, promotions, benefits, and pension vesting as if continuously employed.
  • Provide training: If the employee is not qualified for the reinstatement position, the employer must make “reasonable efforts” to qualify the employee.
  • Not discharge the employee without cause: The law prohibits an employer from discharging an employee for 180 days if service was for 31 to 180 days or for one year if service exceeded 180 days.
  • Offer immediate reinstatement of health insurance coverage: The employer cannot impose a waiting period on health insurance coverage for the employee and the previously covered dependents of the employee.

State Military Leave Protection

Many states have military leave laws that protect workers that serve in a state militia, the National Guard, or as a reservist. Laws vary by state, but most prohibit discrimination against employees that serve in the military and entitle the worker to unpaid leave. Laws typically also provide reinstatement rights and protect the worker’s benefits. For example, Washington state law prohibits employers from denying employment, reemployment (after taking a leave for active duty service) or employment benefits to servicemembers because of their military association and obligations.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506