Number 29, October 2001:
I am Being Recalled. What About My Civilian Job?

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I have been notified that it is likely that I will be called to active duty, along with my Reserve unit. If that happens, will I have the right to return to my civilian job?

A: Yes, provided you meet the eligibility criteria under the Uniformed Services Employment and Reemployment Rights Act (USERRA), which can be found in Title 38, United States Code, Sections 4301-4333 (38 U.S.C. 4301-4333).

To have re-employment rights under USERRA, you must meet the following eligibility criteria:

You must leave a civilian job for the purpose of service, and you must give prior notice to the employer that you are leaving for that purpose. (Law Review 5.)

Your cumulative period of service, relating to that particular civilian employer, must not exceed five years. Certain categories of service are exempt from this five-year limit. (Law Review 6.)

You must be released from active duty under honorable conditions. (Law Review 6.)

You must make a timely application from re-employment after you complete your period of service. (Law Review 7.)

The most important thing that you need to do right now is to give notice to your employer. I suggest that you do so in writing and give a copy of the notice to a trusted friend or relative.

If you meet these eligibility criteria, the employer is required to re-employ you promptly and to treat you, after your return, as if you had been continuously employed, for seniority and pension purposes. (Law Reviews 4 ,8,9.) You are also entitled to immediate re-instatement of your civilian health insurance coverage, through your civilian job, upon your re-employment. There must be no waiting period and no exclusion of “pre-existing conditions,” except those conditions that the Department of Veterans Affairs has determined to be service-connected. (Law Review 10.)
Q: Will I have re-employment rights if I volunteer to serve?

A: Yes. Contrary to popular misconception, USERRA applies to voluntary as well as involuntary service. (Law Review 29.)

If your service is involuntary, it will not count toward your five-year cumulative limit with your present employer. [See 38 U.S.C. 4312(c)(4)(A).] Even if your service is voluntary, it will not count toward your five-year limit if your Service Secretary determines that your service (although voluntary) was for the same “operational mission” for which other Reservists have been called involuntarily. [See 38 U.S.C. 4312(c)(4)(C).]

Just recently, Jayson L. Spiegel, ROA’s executive director, has written to appropriate officials of the Departments of the Army, Navy, Air Force, Transportation (Coast Guard). Mr. Spiegel suggested to these officials that they ensure that the appropriate language be included in activation orders, so that volunteers for the present emergency will have their service exempted from the five-year limit.

Q: A member of my unit is a construction worker. He works for many different employers and is referred by a “hiring hall” operated by his union. If he is called to active duty, will he have re-employment rights?

A: Yes. USERRA applies to situations like that. (Law Review Number 28.)

Q: Another member of my unit works for a major American company, but she works in Europe. Does she have rights under USERRA?

A: Yes. USERRA applies all over the world to U.S. and U.S.-affiliated companies. (Law Review Number 24.)

Q: Where should I go if I have questions or need assistance?

A: Contact the National Committee for Employer Support of the Guard and Reserve (NCESGR), at 1-800-336-4590. Because of the present emergency, that toll-free number is now answered 24 hours per day, seven days per week. You should also check out NCESGR’s Web site: www.esgr.org. That site includes the complete text of USERRA as well as other important information.

*Military title used for purposes of identification only. The views expressed herein should not be attributed to the Department of the Navy or the U.S. government generally.

Captain Wright was employed as an attorney for DoL for ten years. He was largely responsible for drafting USERRA, along with one other DoL attorney. He also helped to write the successful appellate briefs for the veterans in both the Imel and the Akers cases. Most recently, he was on active duty for 71 days (May–July 2001), including 40 days in Bahrain. Please see his July 2001 “Law Review” article.
You may write to Captain Wright at ROA, or you can reach him by e-mail at samwright50@ yahoo.com.