Need to Know Employer Obligations for Military Workers

As military troops continue to be deployed to Iraq, Afghanistan, and other areas, overseers need to understand the legal aspects of the employer obligations for military workers.

This post will provide a general overview of the laws that govern the employers obligations for military workers. 

First, unlike many other federal employment laws, the Uniformed Services Employment and Re-Employment Rights Act of 1994 applies to employers of all sizes. The law protects service members’ reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, and prohibits employer discrimination based on military service or obligation.

Employer Obligations for Military Workers

USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation.

In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.

With respect to reemployment, employers must rehire service members returning from a period of military service if they meet five criteria:

• The person must have been absent from a civilian job on account of service in the uniformed services;
• The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
• The cumulative period of military service with that employer must not have exceeded five years;
• The person must not have been released from service under dishonorable or other punitive conditions; and
• The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.

Finally, USERRA establishes a five-year cumulative total of military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training.

Since the federal employment laws regarding military leaves and reemployment are often complex, employers are advised to consult with an experienced employment law attorney.