When an employee has to take a leave from his or her job because of a military deployment, the send-off can be very moving.  Sometimes the patriotic employer will even throw a thoughtful send-off party, express how the employee will be missed and assure the employee that his job will be there when the employee gets back.

However, as time goes by, the employer’s situation may change. Deployments can sometimes take longer than expected. Perhaps the employer will experience a downturn in business or otherwise re-organize. Perhaps the employer will find what was intended to be a temporary replacement for the deployed soldier, but after time due to performance or continuity, wants to keep that employee in lieu of the deployed soldier. Patriotism aside, the employer has a business to run and these circumstances can create difficult situations upon the employee’s return from the deployment. How is the employer to handle these difficult issues?

These situations are covered by federal law, specifically, the Uniformed Services Employment and Reemployment Rights Act.  Under USERRA, employees that are called up for Reserves or National Guard duty are considered a protected class, and can’t be discriminated against based upon their military service or obligation.  There are also very strict requirements that cover the re-employment of these individuals.

Also see: Policies, procedures pay off for employer in USERRA case

So, as an employer, what are your responsibilities to that employee?

For the most part (there are exceptions not covered in this article), employers are required to re-employ workers who have been honorably discharged or who’ve satisfactorily completed their military service in the Reserves or National Guard, as long as the employee requests reinstatement in a timely manner.

Even if you have a new employee that replaced the deployed employee, one that you may like better or who you may think does a better job, you have an obligation to re-employ the returning soldier, even at the expense of terminating the replacement employee.

For employees that suffer a disabling injury while on active duty, the employer is required to reasonably accommodate the returning employee and allow him or her to perform the duties of the job they would have had had they not been called up. If that job doesn’t exist, the employer must make every reasonable effort to find a job the employee can perform that is the nearest approximation to the previous position.

Also see: Measuring leaves of absence in concert with the ACA

If there was a reduction in force while the employee was deployed, or the job was merely temporary, and the employee would have lost their job even if they had not been deployed, the organization doesn’t have to rehire the employee. But understand that this decision may be closely scrutinized. 

It is also important to understand that when you rehire your employee, you must treat them as if they have never left. This means that any promotions, seniority or raises that they would have received had they not been deployed, must be afforded to them upon their return. 

Lastly, depending on the length of the call-up, the employee may also be exempted from Pennsylvania’s “at-will” employment doctrine, meaning they may enjoy a period of time following their deployment where they can only be discharged “for cause.”

There are certain procedural and technical requirements that apply and which may modify or eliminate some or all of the above requirements. Close consultation with your attorney prior to making any such employment decisions will offer you significant protection in navigating this legal minefield. 

Also see: Veterans face new ‘front line’ challenges returning to civilian workforce

Most American citizens agree that those that serve in the military are vitally important to our way of life, and therefore should be protected for the sacrifice they make. Most American employers are patriotic and support their military employees, but also have competing interests, such as the protection of their business, their families and duties to shareholders. USSERA is the framework that ensures the employer makes such employment decisions with the appropriate balance. 

Richard C. Sokorai is a partner at High Swartz LLP.

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