Guaranteed Job Reinstatement

Besides worrying about home or car payments, ongoing civil court disputes, and evictions of family or dependents, active military persons are often concerned about whether they will have a job to return to once their period of active duty is over. Fortunately, the answer is usually yes.

Federal Law

A federal law known as the Uniformed Services Employment and Reemployment Rights Act of 1994, or 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 on the basis of their service. This law requires employers to reinstate an employee who has taken time off to serve in the armed forces, including reservists called up by the President, if the employee meets these conditions:

• The employee gave the employer notice, before taking leave, that the leave was for military service.

• The employee spent no more than five years on leave for military service.

• The employee was released from military service under honorable conditions.

• The employee reports back or applies 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, provided they are otherwise qualified for that job. This means that your employer cannot simply return you to your old position. Instead, the employer must give you any promotions, increased pay, or additional job responsibilities that you would have gotten had you never taken leave -- but only if you are qualified to do the job. If you are not qualified, your employer must try to get you qualified (by providing training, for example). You are entitled to the benefits and seniority that you would have earned had you been continuously employed. For purposes of benefits plans and leave policies, the time you spent on leave must be counted as time worked.

Returning members of the military receive one additional benefit: You cannot be fired without cause for up to one year after you are reinstated (the exact length of this protection depends on the length of your military service). Thus, no matter what your boss's employment policies say, you are not an "at-will" employee during a limited period after your return. ("At-will" employees may be terminated at any time, as long as it is not for an illegal reason.)