Volunteer vs. Ordered into Active Duty

We have service men and women on Reserve who want to volunteer for yet another tour. Yes, I said volunteer. They have been asking whether an employer must take them back if they volunteer as opposed to being ordered.



It is common knowledge that your employer has a legal obligation to reemploy you upon your return from active duty. However, that legal obligation has limits. An employer does not always have to take you back. The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the law that governs military leave. It states, among many other things, that you are “entitled to the reemployment rights and benefits and other employment benefits of this chapter if you… (1) give advanced written or verbal notice… and (2) the cumulative length of the absence with that employer by reason of service in the uniformed services does not exceed five years…”

It does not appear to differentiate between volunteered and ordered service. There are also other limitations. For example, if an “employer's circumstances have so changed as to make such reemployment impossible or unreasonable,” they do not have to rehire you.

It is a bit of a lengthy and dry reading, but if you are interested and up for the challenge, the statute is in Title 38 of the United States Code, Chapter 43 (bring your own coffee). Or you can just “Google” USERRA. Of course, an employer can implement its own policy granting greater benefits than the statute (it cannot take away any rights in this statute), but you may have a difficult time enforcing your employer’s internal policy, as it is not statutory. It is not law.

Information in this blog is general information only. It should not be construed as legal advice and does not establish an attorney/client relationship.