As a member of the United States Armed Forces employed outside the Armed Forces (typically Reserve or National Guard personnel, although active duty personnel are covered too), you are entitled to employment protection if you are called on to serve your country. In most cases, your employer will be required to employ you in the same (or higher) capacity when you are released from service in the military. However, you must meet five specific conditions to be eligible for reemployment. Understanding these five conditions is essential for any servicemember.
1. The Type of Job
The first requirement concerns the type of job you hold. You must have held a civilian job, which includes not just the private sector, but also federal, state, and local government positions. You must also have been required to leave that job to perform service in the uniformed services. Both voluntary and involuntary service are covered by USERRA; there is no distinction between the two.
2. Prior Notice
To qualify for reemployment after military leave, you must have provided prior notice to your employer regarding your impending service. This notice can be provided orally or in writing. However, if giving notice is impossible, unreasonable, or military necessity precludes it, you are not required to provide prior notice. If you did not provide prior notice and are seeking reemployment after service, you will need to support your claim that giving notice was not possible.
3. Cumulative Time Limit
The cumulative time limit, also called the five-year limit, is perhaps the most confusing of the five conditions necessary for reemployment. To help ensure clarity, we will break down key elements of the cumulative time limit.
In order to be reemployed with your current employer, you cannot have exceeded your cumulative five-year limit on periods of uniformed service.
◦ This limit applies per employer. It does not apply to your entire employment career. You are entitled to a cumulative five years of absence for server PER EMPLOYER.
◦ This limit applies to the total duration of service you have performed, not to the period(s) you are absent from the job. Usually, your absences will be longer than your actual military service because of in- and out-processing time, travel time, etc. Also, depending on the length of service, you have the right to wait for up to 90 days after your service before applying for reemployment.
◦ There are 10 exemptions from the five-year service limit. Five of these require the Secretary of the particular branch of service to make a determination, and five do not. These are broken down as follows:
- 4312(C)(3) – Training requirements necessary for skill training/retraining, or professional development.
- 4312(C)(4)(B) – War or national emergency declaration by Congress or the President requires that you remain on active duty.
- 4312(C)(4)(C) – You’re ordered into active duty to support a mission in which personnel are on active duty pursuant to 10 U.S.C. 12304.
- 4312(C)(4)(D) – Active duty is a requirement of the uniformed service or in support of a mission deemed “critical”.
- 4312(C)(4)(F) – The President has declared a national emergency supported by federal funds and you are ordered to full-time National Guard duty as a result.
No Service Secretary Determination:
- 4312(C)(1) – You’re required to serve beyond five years in order to complete your initial period of obligated service.
- 4312(C)(2) – You were unable to obtain orders that released you from a period of service in the uniformed services before the five-year period expired in which you bore no fault.
- 4312(C)(3) – You’re involved in regularly scheduled inactive duty training and annual training for National Guard or Reserve personnel.
- 4312(C)(4)(A) – You have been involuntarily ordered to active duty, or retained on active duty under any of the following – section 688, 12301(a), 12301(g), 12302, 12304, 12304a, 12304b, or 12305 of title 10 or under section 331, 332, 359, 360, 367, or 712 of title 14.
- 4132(C)(4)(E) – You’re ordered to federal service as a National Guard member under chapter 15 of title 10 or section 12406 of title 10.
4. Released from Service
To qualify for reemployment, you must have been released from your period of service in good standing. That is, you cannot have received a disqualifying negative/dishonorable discharge from the service. If you were dishonorably discharged, your employer is not required to reemploy you. Note that this includes anything other than an honorable discharge, including punitive discharges.
5. Applied for Reemployment
Finally, you must make a timely application with your employer for reemployment. What does “timely” mean, though? It varies based on the duration of your deployment. For instance, if you performed 181 days of service or longer, you have the right to wait up to 90 days after finishing service to apply for reemployment. If your period of service was between 31 and 180 days, you may wait for up to 14 days to apply for reemployment. In all cases, you must apply for reemployment before the deadline expires. If you fail to do so, your employer is not obligated to reemploy you.
USERRA provides robust protection for American servicemembers, including the right to reemployment to the civilian job you left to perform military service However, to be eligible for that protection, you must meet the five considerations we’ve discussed above. Failure to meet just one condition could mean you lose reemployment protection.