Basically, you must reemploy a service member returning from military duty if he or she meets five criteria:
- The employee must have held a civilian job
- He or she must have given you proper notice of the impending military service, unless notice was unreasonable or impossible
- The cumulative period of service must not have exceeded five years, unless it falls within an exception
- The employee must have received an honorable discharge; and
- 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.
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).
HR budget cuts? Let us help. HR.BLR.com is your one-stop solution for all your HR compliance and training needs. Take a no-cost, no-obligation trial and get a complimentary copy of our special report Critical HR Recordkeeping — From Hiring to Termination. It’s yours—no matter what you decide.
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.
Dealing with returning military—a critical task, but certainly not your only challenge. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, harassment charges, and then on top of that whatever the agencies and courts throw in your way.
You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Solicitation. In line with our general non-solicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
Solutions to your HR problems all in one place—compliance, news, training, policies, job descriptions—they’re all there, in-depth, at HR.BLR.com. Take a no-cost look, solve your top problem, and get a complimentary gift.
You can examine the entire HR.BLR.com program free of any cost or commitment. It’s quite remarkable—30 years of accumulated HR knowledge, tools, and skills gathered in one place and accessible at the click of a mouse.
What’s more, we’ll supply a free downloadable copy of our special report, Critical HR Recordkeeping—From Hiring to Termination, just for looking at HR.BLR.com. If you’d like to try it at absolutely no cost or obligation to continue (and get the special report, no matter what you decide), go here.