Returning workers must be reinstated

By Andrea Kay

When members of the National Guard and Reserve are called up for duty, they leave their civilian jobs behind. Since Sept. 11, 2001, more than 420,000 people in companies across the United States have done that. What happens to the jobs they left behind?

Thanks to the Uniformed Services Employment and Reemployment Rights Act of 1994, there's still a job for them when they return.

USERRA requires an employer to reinstate a returning service member to the job, salary and benefits he or she had when they left, plus any promotions, raises or other benefits they would have received with reasonable certainty, if they had not left, explains Robert Lamb, an employment lawyer at Robert A. Klingler Company and a retired lieutenant colonel in the Army Reserve.

Still, some returning workers are concerned. A major in the Army Reserve coming back from Afghanistan after two years wrote to ask how to get what he's entitled to without alienating his employer.

"I am concerned my employer may try to force me to settle for less than I feel I am entitled to receive under the law," he writes.

Service members have 90 days after completing military service to apply for re-employment with an employer, says Lamb. "Do it in writing and provide military documentation of the dates and completion of your service. ... The employer must then promptly reinstate him."

An employer does not have to place someone returning from a lengthy absence — more than 90 days — in the exact job he or she left. The employer can find a position for the returnee that is "of like seniority, status and pay."

The law "attempts to balance the ... needs of the employer with the rights of the employee to return without suffering financially," explains Paul Calico of the law firm Strauss & Troy.

But what if a service member made more money in the military? The returning major says his "level of responsibility and total compensation are a great deal higher than I enjoyed from my civilian employer. I would like to use this experience as justification for increases in seniority and compensation."

This is no different than going from one civilian job to another. Workers get paid more for increased value. Unless a service member acquired some new skill the employer needs, what he or she did on duty, and the pay and benefits received won't matter to an employer, he adds.

"There is nothing more that he can 'demand,' and making any demand will simply alienate his employer," says Lamb.

It is smart to be sensitive to a company's situation. Here are tips to make the transition as smooth as possible for everyone:

• Contact your employer to discuss your return. You don't have to wait until you're released, says Lamb.

• Work with your employer to identify the position that best satisfies the law's requirements.

Contact your supervisor to arrange an informal meeting. Stress your interest in the job and the company. This signals the company it's gaining an experienced and dedicated employee, says Calico.

• Be patient as the employer prepares to "promptly" reinstate you. Since the employer may have to move or remove current employees, it can take time, says Lamb.

• If someone loses a position because of your return, there will naturally be friction, so discuss this openly with your employer.

Both Lamb and Calico point out that most employers honor this law and feel any inconvenience is small compared with the sacrifice their employees made.

Reach career consultant Andrea Kay at andrea@andreakay.com.