Q. Our manufacturing company has a current job opening for an engineer. One of our employees who is on active duty in Iraq for six months learned of the position and would like to apply. Do we have to consider his application?
A. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), a member of the uniformed services cannot be denied re-employment, retention, promotion or any “benefit of employment” on the basis of that membership or obligation.
An employer also cannot discriminate or take any adverse employment action against an individual for being a member of the uniformed services. Accordingly, if employees on leaves of absence for other reasons are allowed to apply for current openings, then your engineer on active duty in Iraq should also be allowed to apply. Otherwise you would be treating him differently because of the military nature of his leave.
Generally, however, under the USERRA, the duty to re-employ members of the armed services arises upon the completion of their service. When on active duty, they would not be able to perform their work duties. As a result, it generally would not violate the USERRA to not consider an employee on active duty for a current vacancy.