We have an employee that is a member of the Army National Guard. He is considering applying for an Active Duty position within the Guard. If he applies for this position and he is approved for voluntary active duty while still employed with us, will the USERRA guidelines still apply?
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Thank you for your inquiry regarding USERRA’s extension to an employee’s voluntary application for active duty service.
USERRA provides that an employer must not deny 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.
Additionally, “service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service. This includes active duty, active and inactive duty for training, National Guard duty under federal statute, and any period for which a person is absent from a position of employment for an examination to determine the fitness of the person to perform duties in the uniformed service.
Thus, USERRA’s protections would extend to this employee’s application for service and, if approved, for any obligation for service or duty, even if that service is performed on a voluntary basis. Employers do have the right to receive advance notice of service, unless military necessity or other conditions make it impossible for the employee to provide notice. The employee, or an appropriate officer of the uniformed service in which his or her service is to be performed, must notify the employer that the employee is to perform military service.
More information on USERRA is available on the Military Service (USERRA) topic page on HR.BLR.com.