Eligibility Criteria for Reemployment

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

To have the right to reemployment under the Uniformed Services Employment and Reemployment Act, after a period of service in the uniformed services, you must meet (and be prepared to document that you meet) these six conditions:

1. You must have held a civilian position of employment.
2. You must have left that position for the purpose of performing service in the uniformed services.
3. You must have given the employer prior oral or written notice.
4. Your cumulative period or periods of uniformed service, relating to the position for which you seek reemployment, must not have exceeded five years.
5. You must have been released from the period of service without having received a punitive (by court martial) or other-than-honorable discharge.
6. You must have reported back to work in a timely manner or have made a timely application for reemployment.

A period of uniformed service can be anything from five hours (one drill period for a National Guard or Reserve member) to five years (or in some cases longer) of full-time voluntary active duty. Whether your period of service is short or long, you must meet all six criteria to have the right to reemployment. If you must sue to enforce your reemployment rights, you will have the burden of proof on these criteria.

This year, I joined ROA’s full-time staff as the first Director of the Servicemembers Law Center. One of the principal goals of the Law Center is to educate National Guard and Reserve personnel about the conditions that they need to meet (and document) to preserve their reemployment rights. I find it disconcerting to hear from personnel who have lost their rights because they failed to meet one or more of the criteria. As we conclude the first decade of the 21^st Century, I will write a definitive article about each of the conditions that you must meet to have the right to return to your pre-service job after a period of uniformed service. These articles can be found through ROA's Servicemembers Law Center. Please visit the law review at www.roa.org/law_review and read this series beginning with #0964.

I have been speaking and writing about reemployment rights since 1982, in one capacity or another. I worked for the United States Department of Labor (DOL) as an attorney for ten years. Together with another DOL attorney (Susan M. Webman), I largely drafted the interagency task force work product that Congress enacted (with only a few changes) in 1994, as the Uniformed Services Employment and Reemployment Rights Act (USERRA), a comprehensive rewrite of the Veterans’ Reemployment Rights Act (VRRA), which can be traced back to 1940. I have also dealt with the VRRA and USERRA as a judge advocate in the Navy and Navy Reserve, as an attorney for the National Committee for Employer Support of the Guard and Reserve (ESGR), as an attorney for the United States Office of Special Counsel (OSC), and as an attorney in private practice.