Call to Duty: An Employer's Obligation to Military Service Personnel

Joseph Lynett, Esq.
 

To support our military actions abroad, the United States has deployed thousands of military troops and has put military reserve units on stand-by.  As many of these people also hold jobs in the civilian workforce, it is important to know the rights created by, and obligations imposed by, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). 

USERRA, a federal law that applies to all employers regardless of size, requires employers to grant leave to employees who serve in a uniformed service and to re-employ employees who have voluntarily or involuntarily completed no more than five cumulative years of service in a uniformed service (i.e. the Armed Forces, Army National Guard, and the Air National Guard).  USERRA defines “service” very broadly to include active and inactive duty for training, full-time National Guard duty, service in the commissioned service corps. of the Public Health Service, periods of absence due to examination to determine fitness for military duty, or to perform funeral honors duty. 

 The Obligations of the Employee

Employees are entitled to re-instatement to their former job only if they have given advance verbal or written notice of uniformed service to the employer.  Upon completing a period of uniformed service, USERRA requires employees to report for re-employment within certain time periods, depending on the length of service.  For example, an employee whose period of service is more than 180 days must report for re-employment no later than 90 days after the completion of the period of service.  The employee must also provide documentation demonstrating coverage under USERRA, if requested to do so by the employer.

The Obligations of the Employer

Once an individual establishes eligibility for re-employment, USERRA requires prompt re-employment in accordance with the following order of priority: 

•                    The employee must be re-employed to the position he/she would have held if the continuous employment had not been interrupted by uniformed service, or to a position of like seniority, status, and pay.  If the individual cannot qualify for that position, USERRA requires employment to the position held on the date uniformed service commenced, or to a position of like seniority, status, and pay.  
   

•                    An individual who has a disability incurred or aggravated by uniformed service and who (after reasonable efforts by the employer) cannot qualify for the position he/she would have held, must be re-employed to a position which is equivalent in seniority, status, and pay or, if not qualified for that position, in a position which is the nearest to the position the individual would have held in terms of seniority, status, and pay.

An employer is not required to employ an otherwise eligible individual if: the employer’s circumstances have so changed as to make such re-employment impossible or unreasonable; re-employment would impose an undue hardship on the employer; or if the employment was of a temporary or casual nature and that there was no reasonable expectation that such employment would continue indefinitely or for a significant period of time.