Nov 25

Incoming: How USERRA Requires a Service Member to Report Back to His Civilian Job

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In the Army now? You'd better call your civilian employer on time.

In the Army now? You’d better call your civilian employer on time.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) puts a Reservist or National Guardsman on the inside track to his old job or, in some cases, a new and better job, once he returns to civilian life. If an employer denies or delays reemployment to a returning service member, the latter can recover the amount of his lost wages and benefits and, if his employer willfully denies or delays reemployment, double that amount.1 But a service member can single-handedly defeat ISIS and still forfeit his rights under USERRA if he doesn’t timely and adequately report back to work.2 If you’re a returning service member, here are the rules of engagement for applying for reemployment.

What USERRA Requires in a Application for Reemployment After Service of 30 Days or Less

No need to get an "attitude." Applying for reemployment is easy.

No need to get an “attitude.” Applying for reemployment is easy.

If an employee returns from “service in the uniformed services” and seeks reemployment with his pre-service employer, he must timely submit an “application” for reemployment. The “application,” however, isn’t a standard job application form, just a notice of intent to return to work. The application can be in any form – oral, written, and even sign language – so long as it communicates three essential facts: he’s a “former employee,” he’s returning from “service in the uniformed services,” and he’s seeking reemployment.3 He doesn’t have to repeat magic words like “USERRA” or copy and paste the law.   

Just how quickly a service member must apply for reemployment depends on the length of his service. If his service lasts less than 31 days or he leaves work for a fitness-for-service exam, he must apply: (1) no later than the beginning of the first full regularly scheduled work period after he completes his service or fitness-for-service exam and after a period for safe transportation from his place of service to his residence and an eight-hour rest period; or (2) “as soon as possible” after the end of the eight-hour period if, through no fault of his own, reporting back to work at the beginning of the first full regularly scheduled work period would be impossible or unreasonable.4

What USERRA Requires in a Application for Reemployment After Service of 31 Days or More

The content of an application for reemployment is the same when a service member has been on a military leave for 31 days or more. The application must indicate that he’s a “former employee,” that he’s returning from “service in the uniformed services,” and that he’s seeking reemployment. But a service member who has been gone for 31 days or more time to readjust to civilian life before he has to submit the application. If his service lasts 31 to 180 days, he must return to work within 14 days after he completes his service.5 If his service lasts 181 days or more, he must return to work within 90 days.6

Similarly, a service member who is hospitalized for or convalescing from an injury that he incurred or aggravated during his service can extend the 14- and 90-day deadlines up to two years.7 He can also extend that two-year period by the minimum time necessary to accommodate circumstances beyond his control that make reporting back to work within the two-year period impossible or unreasonable.8 The two-year period won’t extend the application deadline, however, if the employer has already reemployed the service member.9 Thus, if a service member is hospitalized for or convalescing from a service-connected injury, he might want to wait before he applies for reemployment.

If a service member’s military leave lasts 31 days or more, an employer may request that he provide post-service documentation proving that he meets the criteria for USERRA protection: (1) his application for reemployment is timely; (2) the cumulative length of his absence doesn’t cause him to exceed the five-year limit for military absences or is exempt from the five-year limit (e.g.., he served in a time of war, national emergency, or other critical mission, contingency, or military requirements); and (3) his separation from service was other than disqualifying (i.e., he has not received a punitive or other-than-honorable discharge).10

Fortunately, the service member may submit a wide range of documents. He may rely on: (1) his DD-214; (2) duty orders carrying an endorsement indicating that he completed his service; (3) a letter from the commanding officer of a personnel support activity or someone of comparable authority; (4) a certificate of completion of a military training school; (5) a discharge certificate showing character of service; (6) extracts from payroll records showing the character of his service; and more.11 If the documents don’t exist or aren’t readily available (e.g., because of an administrative delay), the employer may not delay or deny reemployment by demanding the documentation.12

  1. 38 U.S.C §4323(d)(1)(B), (C). 

  2. 38 U.S.C §4312(a). 

  3. 20 C.F.R. §1002.118. 

  4. 38 U.S.C §4312(e)(1)(A). 

  5. 38 U.S.C §4312(e)(1)(C). 

  6. 38 U.S.C §4312(e)(1)(D). 

  7. 38 U.S.C §4312(e)(2)(A). 

  8. 20 C.F.R. §1002.116. 

  9. 20 C.F.R. §1002.116. 

  10. 38 U.S.C. §4312(f)(1). 

  11. 20 C.F.R. §1002.123(a). 

  12. 20 C.F.R. §1002.122. 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.