Question:

I have an employee I just hired.  Six days later, he emailed stating he was joining the military and asked if we would hold his job for him. My question is are we required to hold his position for him regardless of how long he has been an employee?

Answer:

This sounds like a USERRA question.  The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) was enacted to encourage non-career military service and to prevent discrimination against military service members.  To do so, USERRA provides several protections for employees in the armed forces. Specifically, employers may not deny employment, reemployment, retention in employment, promotion, or any other benefit of employment because of past or present membership in the armed forces or intent to join the military.

USERRA’s protections apply to active and reserve service, whether voluntary or involuntary, and USERRA itself applies to all employers, regardless of size, including U.S.-controlled or U.S.-owned companies overseas.  Additionally, in my experience, courts are generally quick to broadly construe and apply USERRA’s protections.  For example, although there are several requirements for an employee to receive USERRA protection, it is rare that a court will not extend coverage to an employee.

Further, generally, an employee’s protection under USERRA begins when an employee is called to active duty or military training and provides their employer with orders for such duty or training.  However, the 1st U.S. Circuit Court of Appeals has held that an employee’s announcement to his employer that he intended to return to active duty after remaining inactive for multiple years was sufficient to trigger protection under the USERRA.

In that case, the employee returned to active military duty after being inactive military status for years.  As part of his return to active military duty, the employee was required to join an active military unit and participate in military exercises.  However, shortly after returning, the employer gave the employee a poor evaluation on his annual performance evaluation and refused to hire him for an internal promotion.  The employee disagreed with the evaluation and filed a discrimination complaint with the US Department of Labor’s Veterans’ Employment and Training Services (“VETS”).

After winding its way through the court system, a federal appellate court confirmed that the employee’s notification to his supervisor of his planned return to active duty and possible deployment was sufficient to trigger the protections of the USERRA, and that once the company had notification that the employee might be called to active duty, USERRA began to apply.

As such, it seems that USERRA protections (and potentially applicable state laws), will likely apply to this employee.  Further, USERRA reemployment rights apply if the cumulative length of service that causes a person’s absences from a position does not exceed five years. Most types of service will be counted in the computation of the five-year period, but there are eight categories of exceptions.

In any case, that generally means an employee’s cumulative length of absence from civilian employment cannot exceed 5 years in total.  However, most leaves are for a shorter duration.  USERRA provides that, except with respect to persons who have a disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person’s military service.  That means the length of the employee’s leave for military duty will generally dictate their reemployment position.  You may find more details about that here: https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch8