Employer Obligations and Employee Rights Under Federal Law Regarding Leave for Military Service

Originally published in October 2001

In the wake of the tragic events of September 11, 2001, the United States armed forces began to mobilize rapidly. As part of the military buildup, President Bush authorized the activation of 35,000 members of the National Guard and Reserves, and as of October 6th, the Pentagon had activated more than 25,765 of these part-time soldiers. As these troops report for duty, it is crucial that employers understand their responsibilities under federal law with regard to the job rights and benefits of employees absent from work for military service.

Employment/Re-Employment Rights of Military Are Protected by Statute

Enacted in 1994, the Uniformed Services Employment and Re-employment Rights Act (USERRA) 1 unified, simplified, and strengthened the web of federal statutes that previously enumerated the employment and re-employment rights of persons completing military service in the United States armed forces. USERRA was intended to encourage part-time military service in the uniformed services by "eliminating or minimizing the disadvantages to civilian careers and employment which can result." Statutes similar to USERRA have traditionally been construed liberally by the courts for the benefit of those who serve their country.2

In general, USERRA requires employers to provide up to five years of cumulative, unpaid military leave to employees, and to re-employ those employees without loss of seniority upon completion of service. In addition, the statute prohibits employers from terminating re-employed workers without cause for a specified period. As such, the leave protections provided to employees by USERRA are the most extensive of any federal statute.

USERRA applies to all private and public employers, regardless of size, and protects employees who work on more than a temporary basis. Most military service, whether voluntary or involuntary, qualifies for protection under USERRA, including: active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, any period of absence during which the employee's fitness is being evaluated for duty, and any period of absence during which the employee is performing military funeral honors.3

Employee Eligibility: Notice, Leave Duration & Reapplication

To be eligible for protection under USERRA, the employee's leave can not exceed five years in the aggregate; an employee must provide notice to his employer prior to the commencement of the leave; the employee must receive an honorable discharge from duty; and the employee must apply for re-employment in a proper and timely fashion following discharge. The burden is on the employee to meet these requirements. An employee who fails to meet any requirement loses any and all rights he may have had under USERRA. These employee obligations are examined in detail below.

Leave Not to Exceed Five Years: To qualify for USERRA protection, an employee's military leave may not exceed five years in the aggregate. Certain periods of leave are excluded by statute from the cumulative total. For example, should the employee finish the tasks of his military duty, and is unable, through no fault of his own, to obtain discharge, the extended time is not included in the five-year limit. Also excluded from the cumulative total is any period during which the employee is "ordered to or retained on active duty (other than for training) . . . because of a war or national emergency" or "ordered to active duty...