Q. We have a number of employees who serve in the armed forces. Some have taken multiple leaves in recent years because they were called up for duty in Iraq or Afghanistan. At least one has been gone for years. With the drawdown of troops in Iraq, we expect that several will want to return to our company, but we have had to hire people to replace them. Are we obligated to rehire them even if we don’t have an open position?
A. In general, the answer is yes. And your obligation is not just to hire them for an open position, or even the position they had before they deployed.
Generally, you are required by law to re-employ them in the position they would have had if they had never left for military service. This is called the “escalator principle,” which is provided for under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA is intended to minimize the disadvantages to an individual that occur when that person needs to be absent from civilian employment to serve in the military. The law applies to all public and private employers, and protects virtually every individual who serves in the armed services. (USERRA doesn’t apply to National Guard troops under state authority, but most states have similar laws to protect individuals serving in this capacity.)
USERRA limits the amount of time a service member may be away from his or her job and still be eligible for re-employment, but deployment to Iraq or Afghanistan is not subject to this time limit and neither is most active-duty military service.
As a general rule, if the employee gave you notice of the deployment and has let you know soon after the deployment ended that he intends to return to work, you are obligated to re-employ him in a position with the same pay and benefits he would have attained if he had been there the whole time.
This is a little easier to figure out if the position has step increases or prescribed benefits with seniority, e.g., under a union contract. It’s a little trickier if increases are discretionary.
Keep in mind that an employee’s history of good performance should factor in, but bad performance shouldn’t. For example, you can’t argue that a returning service member was a poor performer and would have been fired by now anyway, and on that basis refuse to re-employ him.
USERRA is a complicated law and failure to comply can be very costly. Consult with your attorney for assistance in navigating its requirements and to make sure that you’re meeting your legal obligations.
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