What Every Employer Needs To Know About Their Obligations To Employees Who Are Members Of The Armed Forces

This spring we mark the beginning of the fifth year of the war in Iraq. As our soldiers valiantly struggle and sacrifice employers need to know that they too must shoulder some additional responsibilities. Employers need to be aware of the fact that they have certain obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

What is USERRA and when does it apply?

USERRA is a federal law which is designed to protect the rights of US soldiers to return to their civilian jobs once they have completed their tours of duty. This rule applies to both active and reserve members of all branches of the US Armed Forces, including the Coast Guard and the National Guard. Employers need to make sure that they comply with the provisions of this rule every time an employee needs to take time off work in order to: participate in training exercises, go on active or inactive duty or participate in any evaluations mandated by the Armed Forces.

What duties are imposed by USERRA on employers?

Primarily USERRA obligates the employer of any service member to allow that service member to return to their former position once they have completed their active duty, inactive duty, training, or any examinations and evaluations which are required by the Armed Forces.

Which employees will qualify for the protections offered by USERRA ?

A service member must be reemployed by his former employer if five separate requirements are satisfied. First, the service member must hold a civilian job before he/she is called up to serve. Second, the service member must provide advance notice to his/her employer that he/she is leaving in order to complete his/her obligations to the Armed Forces. Third, the service member cannot be absent from the workplace for a total of five or more years. Fourth, the service member will not be eligible for reemployment if he/she is dishonorable discharged. Fifth, the service member must report back to his/her job within a specific period of time after discharge from service.

What kind of notice must the service member provide to his/her employer prior to leaving to complete his/her service?

Notice may be provided either orally or in writing by either the employee or an officer in the Armed Forces. Additionally, service members are excused from providing notice if it is impossible to do so or if they are precluded from doing so by military necessity. Military necessity may prevent providing advanced notice when the service members have received orders to keep their deployment date secret.

How long may a service member be away and still qualify for reemployment?

As explained above the employer is not obligated to reemploy service members who have been absent for five years or more. The five years is calculated by adding together all periods of time during which the employee has been absent. For example if an employee is called up for a two year tour of duty and then a year after he returns to work he is called up for a four year tour of duty the employer is not obligated to rehire the service member because the service member will be away from his job for a total of six years. In theory, the employer can rely on this rule as grounds for refusing to rehire service members. However, in reality refusing to rehire based on this rule is ill advised. The USERRA includes eight exceptions to the five year rule. These exceptions are very broad and in practice they preclude the five year rule from applying for most service members. Before denying anyone a rehire based on the five year rule be sure to contact an attorney or personally review the USERRA exceptions, which are provided on the Department of Labor website.

When must a service member reapply for his/her old job ?

In order to qualify for rehire a service member must inform his former employer of his/her return within a specific time frame. If the service member was gone for 31 days or less he/she must notify the employer of his/her desire to return to work by the beginning of the first day of the next work period. When the service member has been on active duty for 31 to 180 days he/she must make a request to return to work within 14 days after the completion of military service. If the service member has been gone for 181 days or more then he or she must apply for reemployment within 90 days of the completion of the service. Each of these deadlines will be extended for up to two years if the service member is unable to return to work as a result of an injury sustained while performing his/her duties.