Workplace Rights

Weekly (5/31/21)

Topic of the Week  Military Leave

As a member of the United States Uniformed Services, you are entitled to special workplace protections under federal law. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service. USERRA provides protections to members of the Uniformed Services who must leave their civilian employment for a period of time due to activation of military service. USERRA distinguishes military leave from other types of personal leave and thus military leave is governed under federal standards rather than employer based policies.

1. What happens to my accumulated seniority while I am on military leave?

The law entitles you to accrued seniority as if continuously employed, which includes all rights and benefits determined by seniority, such as status, rate of pay, pension vesting, and credit for the period for pension benefit computations.

2. How often can I take military leave? Is there a limit to the amount of leave time that I can take?

USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service. You can take leave as often as you need ift due to activation to military service, subject to a five-year cumulative limit per employer, in order toand still retain reemployment rights with that employer. If you get a different job with a new employer, you get begin that job with a new 5-year limit.

There are some important exceptions to the 5-year limit:

 If you are unable to obtain release or if service is required to complete an initial period of obligated service, that time of service is exempt.

For example: If an initial enlistment lasts more than 5 years, such as for nuclear power training, the employee retains reinstatement rights with the employer.

 If an employee was hospitalized for or is convalescing from an illness or injury incurred in, or aggravated during military service, the limit may be extended up to an additional 2 years.

 Drills (inactive duty training), annual training, involuntary active duty extensions (including training certified as necessary by your service), and recalls due to a war or national emergency are not counted in the 5-year cumulative total.

 Service performed in another job to mitigate economic harm where your employer is violating its employment or reemployment obligations to you. 

If you were employed by the same employer both before and after USERRA's effective date of December 12, 1994, duty that you performed under the previous law will count against the USERRA 5-year limit only if that duty counted against the prior law's service limitation.

3. What are valid reasons for an employer to deny reemployment?

Assuming you are otherwise eligible for USERRA protection, an employer is not required to reemploy you if: 

 the employer's circumstances have so changed as to make such reemployment impossible or unreasonable;

 in the case of a person entitled to reemployment that would impose an undue hardship on the employer; or

 the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

For example, if your employer engaged in a mass layoff, or eliminated your job function completely while you were away, it would not be required to reemploy you.

Your employer can also deny reemployment if you are no longer entitled to the law's protections, such as after you receive a dishonorable discharge or failed to give your employer notice prior to leaving the job for military training or service.

Thought of the Week

"This is the day we pay homage to all those who didn’t come home. This is not Veterans Day, it’s not a celebration, it is a day of solemn contemplation over the cost of freedom."

– Tamra Bolton

Weekly Comic by Jerry King

Weekly Comic by Jerry King

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