Oregon State Bar Bulletin — JULY 2009

The Right to Get Their Civilian Jobs Back
By Janine Robben

Service members deployed for active duty have a valuable benefit in these economically troubled times: the right — with a few major exceptions — to have their own or comparable civilian jobs and other benefits back when they return.

That protection comes courtesy of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which was amended in 2008 to protect non-fulltime military Reservists and National Guard members who have been called to active duty.

“It’s supposed to protect your job as if you’d never left,” says Portland attorney Robert Schulhof Jr., who spoke on the USERRA at a March Continuing Legal Education program on it and other laws that benefit active-duty service members.

“Sometimes we hear from employers that ‘it’s unfair to the guy we hired,’” says Schulhof, a commander in the Navy’s Judge Advocate General’s (JAG) Corps who advised thousands of sailors on legal issues relating to deployment and redeployment between 2001-2003. “Well, it’s unfair to ‘John,’ and he has the law on his side. From the employer’s standpoint, there can be some negatives. But from a national policy standpoint, it’s there to protect against inequities while someone is doing his duty.”

Schulhof says the only exceptions to the law are if the active-duty service member’s work group was laid off in his absence and he would have been laid off, too; if his company went out of business or if he was a seasonal worker or discharged from the military for misconduct. In those cases, he says, the service member has no USERRA protection.

Otherwise, the law provides that:

• All employers are covered, including all levels of government, foreign countries operating within the United States, and U.S. employers operating in foreign countries.

• The cumulative length of time a service member may be gone from work for military duty and still get his own or a comparable job back is five years. The exceptions to the five-year limit are: initial enlistments in any branch of the military that last for more than five years; periodic training duty with the Reserves or the National Guard; and involuntary active-duty extensions and recalls, especially as a result of a national emergency.

• The service member must provide his employer with advance written or verbal notice of his military duty unless giving notice is impossible, unreasonable or precluded by military necessity. “Do not quit your job or accept a leave of absence or sabbatical status,” Schulhof warns.

• A returning service-member must be re-employed in the position he would have attained if he had not had to leave for active duty, with the same seniority, status, pay and other rights and benefits.

• An employer is required to make reasonable efforts (i.e., training) to enable a returning service member to refresh or upgrade his skills. It must provide an alternative re-employment position if the service member cannot qualify for the position he would have obtained but for his military service.

• An employer is required to make a reasonable effort to accommodate a disabled service member. A service member who is convalescing from injuries received during training or service has up to two years from the end of his service to return to work.

• The length of time the service member has to apply for re-employment or to report back to work is based on the time he spent on military duty. For service of less than 31 days, he must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account travel-home time plus an eight-hour rest period. For service of between 31-180 days, he must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, the application must be submitted within 90 days of his or her release.

Claims for USERRA violations should be filed with the U.S. Department of Labor’s Office of the Assistant Secretary for Veterans’ Employment and Training (VETS) at www.dol.gov/vets/aboutvets/asec/ciccolella.htm.

Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin..

© 2009 Janine Robben

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