Employees in the Middle East
and USERRA’s 5-year Rule
Avoid the Trap
The federal uniformed services law, USERRA, secures rights to your worker that has taken up to five years cumulative military leave. Within that five years, if the employee has met all the notice criteria and deadlines, he can be re-employed. 38 U.S.C. §4301.
Employers are torn between recognizing service to our country but the law and common sense kick in at a point in time when re-employment is no right after five years.
However there are carve-outs under the five-year rule. The most pertinent to the Middle East duty served by many American workers is “service performed during time of war or National Emergency” or for other critical missions, contingencies, or military requirements. Under Executive Order 13303, issued by the President in September 2001, virtually any employee called to active service in the Middle East falls within this exception. (Other exceptions are inability to obtain a release from duty before the five year period expires, and required drill and annual training certified by the military.)
To get the best information on the employee’s duty status, you are entitled after thirty consecutive days of service to request military orders or other documentation to prove military duty. This can be requested from the employee, then from the employee’s unit. As to the latter you should get the name of the employee’s unit of attachment and commanding officer. Also, each branch of the military has personnel locators, and you can reach them by calling published telephone numbers to verify that your employee is in fact performing military service: Army (800-318-5298); Air Force (210-565-2660); Navy (901-874-3383); Marines (800-268-3710); Coast Guard (202-493-1697).Typically a soldier returning to the States from deployment for temporary duty is permitted personal leave in this country until the military leave expires. Hence you as an employer should not assume the individual is off duty and free to return to work under such circumstances.