If an employee is choosing to join the National Guard, do we have to hold their job? They were not enlisted when we hired them.
The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and its protections apply to persons who are absent from employment in order to perform service in the uniformed services.
This service includes duties performed on a voluntary basis and would cover duties related to initial enlistment, training, fitness examinations, and other aspects of full-time National Guard duty. Even though the employee was not engaged in military service at the time of hire, if he or she chooses to enlist, the protections of the Act will still extend to him or her.
Additionally, the Act prohibits employment discrimination against past and current members of the military, as well as against persons who apply to be a member of any of the branches of the uniformed services. Specifically, an employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.
In order to be eligible for reemployment, the employee must meet additional requirements, including providing the employer with advance notice of the employee’s service and timely return to work after completion of the service. The notice may be verbal or written and, though there is no specific amount of time required for notice, the employee should provide notice as far in advance as is reasonable under the circumstances. Generally notice of at least 30 days is recommended when it is feasible.
For more information on USERRA, you may find the Military Service topical analysis page on HR.BLR.com helpful.