A federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA, 38 U.S.C. §§ 4301 and following), prohibits discrimination against members of the United States military or those who serve in the military reserves. USERRA applies to all private employers, regardless of size.
The law prohibits employers from taking any negative job action -- such as demotion or firing -- against an employee because he or she is a member of the armed forces or reserves. The law also requires employers to reinstate most employees who take time off to serve. Employers generally don't have to pay employees who take military leave, although some private employers choose to pay the employee, in full or in part, for at least some of this time.
Conditions for Reinstatement
USERRA requires employers to reinstate an employee who takes time off to serve in the armed forces, if the employee meets all of these conditions:
- The employee must have given notice, before taking leave, that the leave was for military service.
- The employee must have spent no more than five years on leave for military service (with some exceptions).
- The employee must have been released from military service under honorable conditions.
- The employee must report back or apply for reinstatement within specified time limits (these limits vary depending on the length of the employee's leave).
USERRA requires employers to reinstate workers to the same position they would have held had they been continuously employed throughout their leave, as long as they are otherwise qualified for that job. (This is called the "escalator position.") This means that you cannot simply return the worker to his or her former position; instead, you must provide any promotions, increased pay, or additional job responsibilities the worker would have received if he or she had never taken leave -- but only if the worker is qualified to do that job. If the worker is not qualified, you must try to get him or her qualified.
Of course, the escalator doesn't always go up. The employee is entitled only to the position he or she would have held if not for taking leave, not to better treatment than other employees in the same position received. For example, if everyone in the employee's department suffered a cut in hours or pay, the returning employee is legally entitled only to the same treatment.
You must also provide the benefits and seniority the worker would have earned had he or she been continuously employed. For purposes of your benefits plans and leave policies, the time your worker spent on leave must be counted as time worked.
Returning members of the military receive one additional benefit: You cannot fire them without cause for up to one year after they are reinstated (the exact length of this protection depends on the length of the worker's military service). Thus, no matter what your employment policies say, these workers are no longer at-will employment employees for a limited period after they return.
Protections for State Militia or National Guard
In addition to these federal protections, almost every state has a law prohibiting discrimination against those in the state's militia or National Guard. Most state laws also require employers to grant leave to employees for certain types of military service. Some states require leave only for those employees called to active duty; other states require leave for those called for training as well.
For More Information
To find out more about USERRA, check out the website of the National Committee for Employer Support of the Guard and Reserve, at www.esgr.org. To find out about your state's law, contact your state department of labor. For an all-in-one reference to the important employment laws that every employer and HR pro needs to know, see The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo).