Military Law

Employer Obligations to Military Employees

By Sachi Barreiro, Attorney, University of San Francisco School of Law
Employers must provide military employees with time off and other rights under federal law.

Do you have employees who are thinking about joining the military or who are being called to active duty? If so, you should be aware of federal and state laws that grant military employees certain rights. Depending on the circumstances, you might need to grant the employee an unpaid leave and reinstate the employee to his or her position when the service is over.

Federal Laws Protecting Military Employees

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that applies to all employers in all states. USERRA covers employees who serve in the U.S. uniformed services, including the Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves, National Guard, the Commission Corps of the Public Health Service, and any other category designated by the President during a war or national crisis. Employees who are called to active duty or training are protected whether the service is voluntary or involuntary.

USERRA grants the following rights to eligible employees:

  • the right to unpaid time off for military service, training, or other activities
  • the right to be reinstated to the employee’s job with the same benefits and seniority
  • the right not to be fired for a certain period of time without good cause, and
  • the right to be free from discrimination or retaliation.

Employers must provide written notice to employees of their rights under USERRA. The Department of Labor has a Your Rights Under USERRA poster available on its website for these purposes.

Right to Reinstatement

Employees who serve in the uniformed services may take up to five years of unpaid leave and receive reinstatement if the following requirements are met:

  • the employee worked for you at the time he or she volunteered for service or was called to active duty
  • the employee gave you advance notice that he or she would be leaving for military service
  • the employee was gone for military service for five years or less
  • the employee did not receive a dishonorable discharge or similar release from service, and
  • the employee applied for reinstatement in a timely manner.

The deadline for applying for reinstatement depends on how long the employee’s service was. Here are the time limits:

  • 30 days or less: on the next scheduled workday, after safe travel home and an 8-hour rest period
  • 31 to 180 days: within 14 days after the end of military service, and
  • 181 days or more: within 90 days of the end of military service.

If these requirements are met, the employee must be returned to the position that the employee would have held if he or she had been employed continuously. This is called the “elevator” position. For example, if employees are routinely promoted from assistant producer to associate producer after two years, the employee would be entitled to the promotion—as long as the he or she is qualified to the do the job. If the employee isn’t qualified, you must make reasonable efforts to get the employee qualified, such as providing training or accommodations.

Employees returning from military leave are also entitled to any raises, seniority, additional work duties, or other benefits that they would have received if they never left.

Right to Job Security

Military employees who are reinstated are entitled to temporary job protection as well. You may not fire these employees for certain periods of time without cause, depending on how long their military service was. If the employee served for 181 days or more, you cannot fire the employee without cause for one year. If the employee served between 31 and 180 days, you may not fire the employee without cause for 180 days. Cause generally means a legitimate, business-related reason for the firing, which might include violation of company rules, insubordination, excessive absences, or other misconduct.

Prohibition Against Discrimination & Retaliation

USERRA prohibits employers from discriminating against current military employees, veterans, or those applying for membership in the uniformed services. This applies to all aspects of employment, including, hiring, promotions, benefits, work duties, firing, and more.

Employers also may not retaliate against military employees who exercise their rights under USERRA, including taking time off, applying for reinstatement, filing a complaint for an USERRA violation, or participating in a related investigation. Retaliation can take many forms and can even include shift changes, exclusion from meetings or social events, or other changes that the employee would find punitive.

State Laws Protecting Military Employees

Many states have rules protecting employees who are called by the state to serve in the National Guard or the state’s militia. Many state laws mirror the rights and obligations of USERRA. However, some states provide additional rights—such as the right to a certain number of days for training—for those serving in the state or federal uniformed services. To learn the rules in your state, select it from our state articles on military leave.

Laws for Family Members of Military Employees

Separate laws provide leave for family members of military employees. The Family and Medical Leave Act (FMLA) is a federal law that grants unpaid leave for an employee to take care of injured military family member or veteran or to deal with issues that arise due to the family member’s service in the military (such as arranging for childcare, attending military ceremonies, or spending time with the military family member during rest and recuperation leave). Several states have similar laws. To learn more, see our article on family leave for military family members.

Questions for Your Attorney

  • Can I fire a military employee for poor performance after he is reinstated?
  • What if our company has no open positions when a military employee wants to return?
  • Do I need to rehire a military employee who comes back with a disability?
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