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An employer is required to restore an employee to his or her employment upon their discharge from active duty in the military under the Vietnam Era Veteran's Readjustment Assistance Act of 1974, (Act). The Act applies to return to work as well as return to seniority status and the benefits that come with seniority, such as health insurance and pension benefits as though the employee had never been deployed. The employee must apply to return to work within 90 days or 31 days if the call to active duty was less than 90 days.

Details of Coverage under the Vietnam Era Veteran's Readjustment Assistance Act of 1974:

• Upon return, the employee is treated in terms of seniority as though he or she had never been deployed
• The employee is entitled to all seniority-based benefits and promotions as though he or she had never been deployed
• All other "length of service" benefits are awarded to the employee as though he or she had never been deployed.

In order for the Act to apply, the deployment to active duty cannot be for longer than four years, but the time period may be extended. Further, once the employee returns to work, he or she is immediately eligible for health insurance benefits as though he or she had never been deployed, without the usual waiting period for new employees. This health insurance will not cover service-related conditions.

One other thing to remember is that it is possible that the employer's situation may have changed sufficiently so that no offer of employment is required when you return. This would require some drastic change such as a fire at the plant, or some other reason why the workforce had been reduced, and a showing that your position would have been eliminated.

Other Protections

Employers cannot discriminate against members or applicants to a uniformed service because of prior, current or future military service. If military service is even a motivating factor in an employment decision, the employer may be liable to the employee unless it can prove the decision would have been made even without the employee's military service under the Uniformed Services Employment And Reemployment Rights Act of 1994, (USERRA) 38 U.S.C.S. § 4611. This law is designed to clarify that the right to reemployment applies to Armed Forces veterans, National Guard members and military reservists, regardless of military training or duty.

Specific terms of the Uniformed Services Employment And Reemployment Rights Act of 1994 (USERRA):

• The employe must give written notice of their military service
• The total absence will not be longer than five years
• The service separation was under honorable conditions
• Reporting for reemployment must be within the appropriate time limits
• During the first year of reemployment, discharge may only be for cause if deployment was longer than 180 days or if the deployment was shorter than 180 days, discharge may only be for cause within 180 days.

Employers are required to post notice of USERRA, its coverage, and its reemployment rights.

How a Lawyer Can Help

If you've exhausted all efforts to get your employer to comply with the federal laws controlling your return to work after deployment, maybe it's time to talk with a labor and employment lawyer. There are many laws that control these areas and sometimes filing a claim with federal agencies is required before filing an action against your employer in court. A lawyer can listen to the facts of your situation and offer you the advice that you need in order to make a good decision as to what you should do.

Questions for Your Attorney

• Am I covered under the federal acts?
• Was my deployment long enough?
• Is the job that I was offered on my return similar to the job I had before I was deployed?
• Have I received the proper benefits as though I had never been deployed?

Sherrie Bennett is the former director and staff attorney at the University of Washington Student Legal Services in Seattle.

Related Resources on Lawyers.com^sm

- Small Business Law
- Family and Medical Leave Act for Employees
- Visit the Employment Law for Employers Message Board for more help

Related Web Links

- The US Department of Labor - Veterans' Employment and Training Service - General Frequently Asked Questions
- The U.S. Equal Employment Opportunity Commission
- Non-Technical Resource Guide to USERRA