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No. The law requires an employee to provide their employers with advance notice of military service, with some exceptions.

Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However, no notice is required if

  • Military necessity prevents the giving of notice; or
  • The giving of notice is otherwise impossible or unreasonable.

"Military necessity" for purposes of the notice exception is defined in regulations of the Secretary of Defense as “a mission, operation, exercise or requirement that is classified, or a pending or ongoing mission, operation, exercise or requirement that may be compromised or otherwise adversely affected by public knowledge.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was signed into law on October 13, 1994. USERRA clarifies and strengthens the Veterans' Reemployment Rights (VRR) Statute. The Act itself can be found in the United States Code at Chapter 43, Part III, Title 38.

USERRA guarantees an employee returning from military service or training the right to be reemployed at his or her former job (or as nearly comparable a job as possible) with the same benefits. USERRA applies to virtually all employers, regardless of size, including the Federal Government. There are parallel provisions in the statute that apply to Federal, State and Local Government employers.

Yes. The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits all employers from discriminating against any veteran, reservists, or National Guard members because of his or her past, present, or future military obligation. The Law also requires that employers provide reemployment rights after a period of active duty or training. If you think your rights have been violated contact the USDOL VETS State Director at 505-346-7502.

To qualify for protection under USERRA, a service member must be available to return to work within certain time limits. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person’s military service.
Service of 1 to 30 days:

The person must report to his or her employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service. If due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible after an 8 hour rest period.

Service of 31 to 180 days:

An application for reemployment must be submitted to the employer no later than 14 days after completion of a person’s service. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible on the next day when submitting the application becomes possible.

Service of 180 or more days:

An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service.

  1. Conditions that disqualify basic reemployment rights:
  2. Separation from the service with a dishonorable or bad conduct discharge.
  3. Separation from the service under other than honorable conditions.
    Dismissal of a commissioned office in certain situations involving a court martial or by order of the President I time of war. (Section 1161(a) of Title 10.)
  4. Dropping an individual from the rolls when the individual has been absent without authority

If a person has been absent for military service for 91 or more days, an employer may delay treating the person as not having incurred a break in service for pension purposes until the person submits satisfactory documentation establishing reemployment eligibility. However, such contributions have to be made promptly for persons who are absent for 90 or fewer days. (Section 4312 (f) (3) (B).)

Pension plans (Section 4318), which are tied to seniority, are given separate, detailed treatment under the law. The law provides that:

  • A reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan
  • Military service must be considered service with an employer for vesting and benefit accrual purposes.
  • The employer is liable for funding any obligation of the plan to provide required benefits.
  • The reemployed person is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions.

A “pension plan” that must comply with the requirements of the reemployment law would be any plan that provided retirement income to employees upon the termination of employment or later. Defined benefit plans, defined contribution plans, and profit-sharing plans that re retirement plans are covered.

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