Reference Number: MTAS-871
“Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including active duty, active duty for training, initial active duty for training, inactive-duty training, full-time National Guard duty, absences for examinations to determine fitness, funeral honors duty by National Guard or reserve members, and certain duties performed by National Disaster Medical System employees. 38 U.S.C. § 4303(13). The uniformed services consist of the Army, Army Reserves, Army National Guard, Navy, Naval Reserve, Marine Corps, Marine Corps Reserve, Air Force, Air Force Reserve, Air National Guard, Coast Guard, Coast Guard Reserve, Commissioned Corps of the Public Health Service, certain types of service in the National Disaster Medical System, and any other category of
persons designated by the president in time of war or emergency. 38 U.S.C. § 4303(16).
According to a Thompson Publishing Company’s Special Report, Return From Duty, Return to Work: Understanding the Employer’s New USERRA Obligations (2006), there is no exclusion for executive, managerial, or professional employees. The law even protects temporary, part-time, probationary, and seasonal employees, as well as employees on strike, layoff, or leave of absence. It does not, however, apply to individuals who act as independent contractors rather than as employees.
The Thompson Publishing Company Report also provides that “an employer cannot refuse to hire, re-employ, retain, promote, or deny any benefits to an individual because he or she is a member of a uniformed service, has applied for membership in the uniformed services, or must fulfill service obligations. It also is illegal for an employer to retaliate against someone who exercises his or her rights under USERRA.”
The law requires all affected civilian employees to provide their employers with advance notice (written or oral) of their military service orders. No notice, however, is required if military necessity prevents giving advance notice or if giving notice is impossible or unreasonable. 38 U.S.C. § 4312(a)(1).
Employees may also need additional time off before starting military service. 20 C.F.R. § 1002.115 of the regulations recognize that absences for military service may include a period of time between the date the employee leaves the job and the date the employee actually begins service. In addition, the Thompson Publishing Company Report suggests that “employees may need intermittent time off from work prior to military service for brief periods to put their affairs in order, for example, to interview child care providers, meet with bank officers
regarding financial matters, or seek assistance for elderly parents.”
They also suggest that the amount of time an employee may need to prepare for military service will vary. “Relevant factors include the duration of the military service, the amount of notice given an employee called to military service, and the location of the service.”