What position should we give an employee who has been on leave for military service?

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Question:

One of our employees was called up to serve in the military; he's in the National Guard. He's been gone for more than a year, and has just notified us that he'll be returning home and wants to come back to work. He worked in our accounting and payroll department, but we've long since filled his position. What are our legal obligations here? 

Answer:

You have a number of legal obligations to your employee, all based on the Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal law that protects employees who need time off for military service. Employees who are called to active duty have a number of workplace rights, as long as they meet these requirements: 

  • - The employee must give notice, before taking leave, that the leave is necessary for military service. 
  • - The employee must spend no more than five years on leave (with some exceptions). 
  • - The employee must have been released from services under honorable conditions. 
  • - The employee must report back or apply for reinstatement within specified time limits. For an employee who is gone for more than year, as yours was, the time limit is 90 days after service is complete. 

Assuming your employee meets these criteria, you must reinstate the employee to the position he would have held if he had been continuously employed (rather than on leave to serve in the military). This is called the "escalator position." The employee is entitled not only to reinstatement, but also to any promotions, raises, or other seniority-based benefits the employee would have received. For example, if everyone gets an annual "cost of living allowance" (COLA), your employee who was on military leave is entitled to the same bump. 

That you have filled the employee's position doesn't change this right. You must reinstate him promptly, which generally means within two weeks of his application to return, absent unusual circumstances. You must also reinstate the employee's benefits. 

Finally, you should be aware of USERRA's job security provision, one of the strongest employment protections in any law. You may not fire your employee for a full year after he returns from military service, except for cause. If you fire the employee during this time period, you must show that the discharge was reasoanble and that the employee had notice that his conduct was cause for discharge. And, you will have the burden of proving you acted legally in court. This provision applies even if your company is an at-will employer otherwise. 

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