Nyemaster Goode, P.C.

"When Johnny Comes Marching Back to Work": Inside Tips to Ease the Military Leave Reemployment

By Kristina Stanger

Our communities are filled with the patriotic sights and sounds of Welcome Home Ceremonies as thousands of Iowa and Nebraska National Guard service members return from a year-long mission in Afghanistan.  Who can resist feeling compassion for the soldier who cannot help but break the ranks of his unit's formation to greet his 3 year-old daughter as she runs across the gymnasium floor for an emotional embrace? 

As business leaders and co-workers join in these community celebrations welcoming service members back to civilian life, many of you may also wonder: "How can I help reintegrate my Soldier-employee back to our team?" or "When should I expect his or her return?" or "What are my obligations when it comes time for my employee to return to work?" 

The Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") is the Federal law that, among other things, creates reemployment rights and duties for employees called to duty in the U.S. armed forces and their civilian employers.  Unlike most federal employment law, USERRA applies to all public and private employers, regardless of size.  Additionally, when an employer has 50 or more employees, the Family and Medical Leave Act ("FMLA") may provide a military family member employee with protected leave from work to assist the service member in reintegration endeavors under its qualifying exigency leave provisions. 

The following tips are helpful in navigating USERRA's reintegration requirements: 

-  Most employees must report back to work or apply for reemployment within 90 days after completion of service where the period of service exceeded 180 days and the employee meets all of the statute's reemployment criteria.  A service member convalescing from injuries has up to two years to apply for reemployment.   

-  A service member's application for reemployment can be verbal or written and there is no required format.  

-  The employer must "promptly" reemploy the service member, which means as soon as practicable under the circumstances of each case.  Further, the service member may not be discharged except for cause for one year after the date of reemployment.    

-  Generally, the service member is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to military service.  This "escalator principle" includes reemployment to a position with the same pay, benefits, seniority and all other job privileges that he or she would have obtained if not for the period of service. 

-  Employers have a duty to aid the returning employee in becoming qualified for a position he or she would have been entitled to and to make reasonable efforts to train or retrain returning service members to refresh or upgrade their skills.     

-  Other benefits such as pension participation, contributions and health plan coverage are also due under USERRA upon the employee's return. 

-  Additionally, USERRA protects the employee from discrimination and retaliation related to his or her service and provides guidance about reemploying service members who suffered injuries or return disabled. 

For more information:

-  On reintegration questions, additional USERRA's requirements, your military leave employment policy and employee benefits questions contact Nyemaster Goode's attorneys at 515-283-3100 or www.nyemaster.com;

-  For tips, answers to frequently asked questions and forms, provided by the Department of Labor and the Employer Support of the Guard and Reserve ("ESGR") see: http://www.esgr.org/site/Resources/Employers.aspx or call the ESGR's national customer service center at 1-800-336-4590;

-  For USERRA posters, fact sheets, pocket guides and a USERRA training video, go to Department of Labor VETS http://www.dol.gov/vets/ ; and

-  For answers to FMLA military exigency leave questions, visit: http://www.dol.gov/whd/fmla/finalrule/MilitaryFAQs.pdf.


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