ALP: I have employees who are absent because of military service. What are my legal obligations regarding the employment of those employees?

May 2006

The Uniformed Service’s Employment and Reemployment Rights Act (“USERRA”) prohibits employers from dis- criminating against individuals because of past, present, or future membership in a uniformed service and provides employees certain reemployment rights. 

The provisions of USERRA apply to all employers, regardless of size, and to all employees, regardless of length of service.  In order to obtain reemployment pursuant to USERRA, employees generally must (1) give advance notice of military service; (2) not exceed five years of cumulative absence for military service; and (3) apply for reemployment within a specified time period, which depends upon the length of absence due to military service.  Employers are permitted to hire replacement employees to fill the vacancies left by individuals who are absent due to military service, but employers may not refuse to rehire service members because their former positions have been filled by replacement employees. 

There are several exceptions to USERRA’s reemployment requirements.  For instance, if the employment from which the person leaves to serve in the military is for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period (temporary employees), an employer is not required to reemploy an individual pursuant to USERRA.

USERRA includes numerous other provisions that affect the employment of individuals who are absent because of military service, including:

Employers cannot take an adverse employment action against an individual because of his or her military service.  In general, employers must treat military service members the same as other employees, except where USERRA provides special rights for service members.