Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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Law Review 1162



Law Review 1162

You Need Not Report Back to Work Immediately After Military Service

By Captain Samuel F. Wright, JAGC, USN (Ret.)

1.3.1.1—Left Job for Service and Gave Prior Notice

1.3.1.3—Timely Application for Reemployment

Q:  I am a Lieutenant in the Navy Reserve and a member of ROA.  I am also a civilian employee of the Department of the Navy.  I completed a 55-day period of active duty for training on Friday, August 26, 2011.  I want to take off some time for Labor Day, but my civilian supervisor learned that I am back from my military duty, and she “ordered” me to report back to the civilian job on Monday, August 29.  I thought that under the Uniformed Services Employment and Reemployment Rights Act (USERRA) I am entitled to 14 days off from my civilian job after a period of military service of 31-180 days.  What gives?

A:  As I explained in Law Review 0766, and other articles, you must meet five eligibility criteria to have the right to reemployment after a period of absence from work for uniformed service.  I invite your attention to www.servicemembers-lawcenter.org. [1]  You will find more than 800 articles about USERRA and other laws that are particularly pertinent to those who serve our country in uniform, along with a detailed Subject Index and a search function, to facilitate finding articles about very specific topics.

Whether your period of service is five hours or five years, or anything in between, you must meet five eligibility criteria to have reemployment rights:

You must have left a civilian position of employment for the purpose of performing voluntary or involuntary service in the uniformed services.

You must have given the employer prior oral or written notice.

Your cumulative period or periods of uniformed service, relating to the employer relationship for which you seek reemployment, must not have exceeded five years.  All involuntary service and some voluntary service are exempted from the computation of the limit.  Please see Law Review 201 for a detailed discussion of what counts and what does not count.

You must have been released from the period of service without having received a punitive (by court martial) or other-than-honorable discharge.

You must have made a timely application for reemployment.

After a period of service that is more than 30 days but less than 180 days, you have 14 days to apply for reemployment.  38 U.S.C. 4312(e)(1)(C).  Since you were released from the period of duty on Friday, August 26, you have until Friday, September 9 to apply for reemployment.

It is not exactly correct to state that USERRA gives you the right to 14 days off.  In this situation, USERRA gives you 14 days to apply for reemployment.  If you are not ready to return to work, you should wait to submit your application for reemployment.  Once you apply for reemployment, you should expect the employer to say:  “Welcome back.  Here are your tools.  Now clock in and go to work.” 

In this sort of situation, the employer or supervisor may see you in the local area or otherwise be aware that you have returned from the period of military service.  I suggest that you send the supervisor a polite e-mail, advising her that you have returned to the area but that you are going to wait a few days before submitting your application for reemployment.  You should start the e-mail with “This is not an application for reemployment” in bold print. 

Q:  Back in May, when I gave my supervisor notice of my July-August military duty, I gave her a copy of my military orders, as you suggested in Law Review 91.  Thus, she knew that the military duty was scheduled to end on August 26, and it did end on schedule.  My supervisor has ordered me to report for work at 8 am on Monday, August 29, 2011.  She told me that I will be fired if I do not report for work as ordered.  What do I do now?

A:  I suggest that you report for work as ordered and that you call the National Committee for Employer Support of the Guard and Reserve (ESGR) at 800-336-4590, between 8 a.m. and 6 p.m. Eastern Time Monday-Friday. 

I suggest that you do not call ESGR from work or during your civilian work hours.  Let’s not make things worse.  If you need to reach ESGR outside those 8-6 hours, send an e-mail to USERRA@osd.mil as well as Curtis.Bell@osd.mil.  Give ESGR your home or cell telephone number and an appropriate time for them to reach you.  Good luck.



[1] We recently moved the Law Review Library and the Service Members Law Center page from the ROA webpage to this separate webpage.  We add 1-3 new articles per week, and we have outgrown the ROA webpage.