Employees who leave for military service with the National Guard or Reserves have important job rights when they return from duty.
These rights are guaranteed by the federal Uniformed Services Employment and Reemployment Rights Act, or USERRA. This law protects military veterans from workplace discrimination due to their service, and also gives them the right to get their job back when they return.
The law generally applies as long as the employee (1) gave the company adequate notice before leaving, (2) was away less than five years, (3) was honorably discharged, and (4) applied to get his or her job back in a timely manner after returning from service.
What is a “timely manner” can depend on the length of service. For instance, if an employee was on active duty for more than 180 days, he or she must apply to get a job back within 90 days after completing service.
Employers are required to treat the employee as if he or she had not been absent. This means they must get their old job back, or if that job is no longer available, they must get a comparable job. If necessary, the employer must provide training for the comparable job.
Employees must also be given the same seniority rights and pension benefits they would have had if they had never left. And they must be given health benefits without any waiting periods or exclusions that normally apply to new hires.
USERRA rights can be tricky if a company is sold while an employee is on military leave.
For instance, Jonathan Dorris was called up for a year’s service in Iraq with the Arkansas Army National Guard. While he was away, his employer sold the company. The buyer agreed to keep on all current employees, but the seller didn’t include Dorris on a list of “current” employees.
Dorris was eventually re-hired by the buyer, but he sued the seller for creating problems for him by leaving him off the list. A federal appeals court allowed the lawsuit to go forward against the seller.