by Steve Jones
Q What are my obligations to employees who are in the military, are called to serve, and then seek to return to their civilian jobs? What if an employee will be deployed for more than a year?
A The Uniformed Services Employment and Reemployment Rights Act (USERRA) governs the employment of military servicemembers. USERRA, which is a federal law and therefore applies in all states, is intended to ensure that people who serve or have served in the armed forces, reserves, National Guard, or other uniformed services (1) are not disadvantaged in their civilian careers because of their service, (2) are promptly reemployed in their civilian jobs upon their return from military duty, and (3) are not discriminated against in employment based on past, present, or future military service. You must be aware of your obligations under USERRA before you hire military servicemembers, during their employment, and while they are away from their jobs because of service-related duties. 
Application of the law
First, you may not deny someone initial employment because of past, present, or future military service. You can defend your company against a USERRA claim by presenting evidence that you would have taken the same action if the job applicant didn’t have military service obligations. Detailed documentation, including comprehensive interview notes and in-depth explanations of your reasons for not hiring prospective employees, will help your defense.
During a servicemember’s employment, you may not refuse to retain him, promote him, or offer him any “benefit of employment” because of his military service. A “benefit of employment” is broadly defined as any advantage, profit, privilege, gain, status, account, or interest that accrues by reason of the employment relationship. Promotion plans must provide a mechanism by which employees who are absent because of their military service obligations can be considered. In addition, servicemembers are protected from any reduction in force (RIF) during their furlough period (i.e., while they’re performing service-related duties). If an employee’s job is abolished during her absence, the company must assign her to another position of similar status and pay.
While a servicemember is away from his job, he is deemed to be on a leave of absence or furlough. Servicemembers may elect to use paid leave while they are on military duty. A servicemember has a right to reemployment in the same job at the same pay if she (1) gives advance written or verbal notice of her service obligation (no magic words are required), (2) performs qualifying service duties for less than five years, and (3) timely reports for work upon her return from service and requests reemployment.
Five-year rule
An employee who leaves her job to perform qualifying military service protected by USERRA may be absent for as long as five years. The five-year rule is cumulative, which means the employer may include past and present military service in the calculation. Only the service performed while the employee is employed by your company may be counted, however.
For example, if an employee worked for another company for six years and was deployed for three of those years, you may not include that three-year period in the cumulative five-year calculation. If the employee works for you for one year, is deployed for one year, returns to work for two more years, and is redeployed for three years, her cumulative total with your company is four years, and you must reemploy her upon her return from service.
Bottom line
The federal government has taken a strong stance to protect military personnel from discrimination. Employers may not discriminate against a servicemember before employing them, during their employment, or upon their return from deployment. 
Steve Jones is a founding partner with Jack Nelson Jones &Bryant, P.A., practicing in the firm’s Little Rock, Arkansas, office. He may be contacted at sjones@jacknelsonjones.com.