In the United States, there are more than 400,000 members of the National Guard and hundreds of thousands more across the branches of the military reserves, many of whom also have civilian day jobs at home. Because of this, it is not uncommon for workers in the United States to require military leave, and their ability to do so is protected by federal law. The Uniformed Services Employment and Reemployment Rights Act (or USERRA), passed in 1994, establishes a set of protections for workers who take military leave. Under USERRA, workers who return from service must retain the seniority level they would have had if they had not left, must receive access to training for promotions they otherwise would have gotten, and must retain the same pension plan. If they are injured, they must have access to reasonable accommodations and extra time off (if necessary). If the leave is less than 31 days, the employee is entitled to retain their workplace health coverage; for longer leaves, they may choose to retain the coverage but may be required to pay premiums.An Employee's Responsibilities When Taking Leave
Although employers must accommodate their employees' military commitments, the employee is still required to give as much notice as they reasonably can when they are taking military leave. Although notifying your employer orally is considered a valid method of notice, the best method is to give that notice in written form. This will protect you from any suggestion that you have not fulfilled the requirements and will establish a paper trail for your request. Additionally, when returning, you may be required to apply for reemployment at your old employer. There are strict deadlines for such applications: for a leave of more than 30 days, you have 14 days to apply; for a leave of more than 180 days, that time limit extends to 90 days.
There are also rules that govern when you must return to work after completing your service. If you were on leave for less than 31 days, you must return to work on the first full work day after your release from service. When determining the "first full day," you are allowed to count the travel time needed to return home and an eight-hour rest period as part of your service time. That means you do not need to show up until the beginning of the first day after you have already been home for eight hours. Those same rules apply for leaves of 30 to 181 days and leaves of 180 days or more, the difference being that you must complete an application for reemployment as described above. When that application is submitted and accepted, you are then committed to beginning work on the first day after you return home.
Wiley Walsh, P.C.'s Austin employment lawyers can help you make sure that you receive the military leave you are entitled to and that you are properly returned to your job after that leave ends.Taking Action to Protect Your Rights
Employers violate the rights of employees who have taken military leave in a number of ways. Most commonly, they will refuse to reinstate workers to their former position, or simply refuse to reemploy a worker who has taken leave. It is also not uncommon for employers to take other adverse action against employees they do reinstate, such as cutting their pay or benefits, denying them a promotion, or suspending them. All of these actions are illegal, and an employee's military leave cannot be the reason for any adverse employment action taken against them in the workplace. If you return from a military deployment and cannot return to your old job, or suffer other mistreatment or consequences in the workplace, your employer may have violated the law and you should contact an attorney.
Protecting your right to keep your job and seniority under USERRA can be complicated and difficult. If you are about to be deployed and have doubts about your employment status, we recommend that you contact an attorney before you take your leave. At Wiley Walsh, our Austin employment lawyers are ready to help make sure your rights are protected as a member of the Armed Forces, and that you do not suffer employment consequences as a result of your military leave. If you are about to be deployed and want to consult with an attorney, or have returned from deployment to find that you have lost your job or are being mistreated at work, you can get in touch with us by filling out our intake form or calling our office at (512) 271-5527.