Labor and Employment

Military Leave for Employers

Do you have employees serving in the armed forces or National Guard? The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects the civilian careers of people who enter military service. 

The law requires employers to give an employee military leave when the employee:

  • Is drafted
  • Enlists in a uniformed service
  • Is called to active duty

Employees on military leave are entitled to:

  • Leave employment status
  • Continuation of employment benefits

Reemployment after Military Leave

You are required to reinstate an employee in a job after the employee's military service ends if: 

  • The employee gives advance notice (preferably written) of the military leave
  • The total length of absence from the job doesn't exceed five years
  • The employee tells the employer he or she intends to return to work once the military service is completed

An employee gone less than 91 days must be reinstated in the position the employee would have held if the employment had been continuous.

If the leave is longer than 90 days, the employee must be put in the job he or she would have held if there had been continuous employment, or in a position of like status, pay and seniority.

If an employee would have been included in a layoff while absent, the employer doesn't have to reinstate that employee.

Employers must reasonably accommodate a qualified employee with a service-related disability.

Enforcement of Rights

If an employee thinks an employer is not following the law, the employee can file a complaint through a local office of the United States Department of Labor, VETS.

Remedies available to employees through the Department of Labor include: 

  • Return to the job
  • Back pay
  • Lost benefits
  • Corrected personnel files
  • Lost promotion opportunities
  • Retroactive seniority
  • Pension adjustments
  • Restored vacation

An employee may recover only the actual dollar amount lost, without penalty to the employer.

Another option for resolving problems is a lawsuit filed by the U.S. Attorney General or the Office of Special Counsel. Courts can make an employer pay what is found due to the employee, and double this amount if the employer willfully violated the law.

Military leave rights under state law may add to the rights established by USERRA. If there's a conflict between the two, USERRA applies.

Taking Time for Reserve Duty

State laws vary as to how much time an employee can take for reserve duty or National Guard duty. Contact your local VETS Office or the employee's commanding officer for more information. 

Questions for Your Attorney 

  • How soon must an employee return to work after serving in the military in order to claim an old job under USERRA?
  • How long does an employee have to make a complaint against an employer for violating USERRA?
  • Can I refuse to reinstate a soldier in his old job if I had to eliminate that position due to the bad economy?

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