USERRA rights extend to individuals who have been absent from their jobs while providing “service in the uniformed services”. Some of the various types of situations to which USERRA applies include individuals who are on active duty, active duty for training, absent from work for an examination to determine an individual’s status for any of these types of duty, full-time National Guard duty, duties performed by intermittent employees of the national disaster medical system, funeral honors duty performed by national guard or reserve members, and inactive duty training, initial active duty for training.
Individuals who are past or present members of the uniformed service, have applied for membership in the uniformed service, or who are obligated to serve in the uniformed service may not be denied initial employment, promotions, reemployment, retention in employment, or any other benefit that might be provided by an employer.
Individuals in an applicable type of duty have the right to be reemployed in a civilian job if that individual leaves a job to perform service in the uniformed service and satisfy several requirements including: providing an employer with advance written or verbal notice of the individual’s service, an individual perform five years or less of cumulative service with the uniformed service, an individual returns to work or apply for reemployment in a timely manner after the service has ended, and an individual has not been separated from service with a disqualifying discharge or other less than honorable conditions. There are several exceptions to this five year requirement including service that is required for greater than five years to complete an initial period of obligated service, an individual is unable to obtain a release within the five year limit, training that is required for reservists and National Guard members, service that is involuntarily ordered during active emergencies, service under an order due to war or national emergencies, active duty by volunteers supporting operational missions, service by volunteers who are ordered to active duty in support of a critical mission or requirement, and individuals that are federal service members of the National Guard called into action by the President.
The exact date that service members are required to report to work and require reemployment under USERRA depends on the length of time that an individual was away from work on military service. For individuals who spent less than 31 days in military duty, the individual is required to request reemployment at the beginning of the next regularly scheduled work period on the first full day after release from the service. For individuals who spent more than 30 days up to 180 days in military duty, the individual must request reemployment within 14 days of being released from duty. For individuals who spent more than 180 days in military duty, the individual must request reemployment within 90 days of release from prison. Individuals who miss these deadlines likely will retain a right to re-employment but may be required to follow additional requirements.
If you require assistance under the USERRA, do not hesitate to contact the talented legal counsel at Whitcomb, Selinsky.