Reemployment Rights of Returning Vets

Basically, you must reemploy a service member returning from military duty if he or she meets five criteria:

1. The employee must have held a civilian job
2. He or she must have given you proper notice of the impending military service, unless notice was unreasonable or impossible
3. The cumulative period of service must not have exceeded five years, unless it falls within an exception
4. The employee must have received an honorable discharge; and
5. The employee must have reported back to the preservice position in a timely manner or submitted a timely application for reemployment. Applications for reemployment can be either oral or written.

The time spent away from the employer in military service controls when an application for reemployment must be submitted:

Period of service for less than 31 days or for a fitness examination: The employee must report to the employer not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service, and following the expiration of 8 hours after a period allowing for safe transportation from the place of that service to the employee’s residence.

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Period of service for more than 30 days but less than 181 days: The employee must submit an application for reemployment (written or verbal) with the employer not later than 14 days after completing service. If it is impossible or unreasonable for the employee to apply within 14 days through no fault of his or her own, the employee must submit the application not later than the next full calendar day after it becomes possible to do so.

Period of service for more than 180 days: The employee must submit an application for reemployment (written or verbal) not later than 90 days after completing service (20 CFR Part 1002.115).

These time limits may be extended for up to 2 years if an individual is hospitalized or convalescing from an injury caused by active duty. This period for recuperation and recovery extends the time period for reporting to or submitting an application for reemployment to the employer and is not applicable following reemployment (20 CFR Part 116).

Required documentation on application for reemployment

The employee may be required to submit documentation to the employer in connection with an application for reemployment if the period of service exceeded 30 days to establish that:

• The reemployment application is timely
• The employee has not exceeded the 5-year limit on duration of service, and
• The employee’s separation or dismissal from service was not dishonorable, based on bad conduct, or “other than honorable”

However, you cannot delay reinstatement while waiting for documentation.

USERRA requires “prompt” reemployment. According to the U.S. Department of Labor (DOL), that means reemployment within two weeks after the employee applies for it. You will have the burden of explaining any delay longer than two weeks.

USERRA generally requires that service members be reinstated to the position they would have attained if they had been continuously employed. This can be tricky when servicemembers have missed, say, two years of training and experience.

If you can prove they don’t qualify for a different job after reasonable efforts have been made, you may place them in the position they left or a substantially similar one.

Military leave policies, one of what, a dozen policy issues you’re dealing with today? How can you be sure your supervisors and managers are following your policies on veterans? Or anything else for that matter? There’s only one way—regular audits. The rub is that for most HR managers, it’s hard to get started auditing—where do you begin?

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