The Employers’ Legal Obligations to Employees in the Military

Hiring the citizen soldier has great benefits but there are also strict laws governing their treatment that every employer needs to know.

2007 Volume 10 Issue 3

The citizen soldier brings many assets to the work place: they tend to follow instructions and respect authority; they have leadership skills and work well in organizations. Some have service-acquired skills that translate well in the business community such as computer skills. With these many talents provided to the employer come responsibilities.


Photo: SX70

This article is intended to bring to the attention of employers the legal obligations they have to employees who have been called to active military duty or who are members of the United States National Guard or Reserves. For example, what obligations, if any, does an employer have to re-employ a veteran in the position they held prior to being called to active duty? What if doing so displaces another employee or results in hardship for the employer?

While there are benefits in having a citizen soldier as an employee, employers must be prepared to address these difficult questions along with several others that flow from the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA).[1] Unlike some other federal laws that apply only if the employer has a certain number of employees, USERRA applies to all employers.

If you are wondering if these challenges will present themselves to your business organization, consider what the Pentagon has reported: As of August 2005 more than 141,000 members of the United States National Guard and Reserve military forces have been deployed to Iraq and Afghanistan. Currently those forces comprise more than 35 percent of all U.S. military forces actively serving in the region.

The magnitude of this issue is clearly reflected in the U.S. Department of Labor Statistics. There are over 2.6 million people in the U.S. Military.[2] Since September 11, 2001, more than 390,000 members of the National Guard and Reserve have already been released from active duty. This is the largest deployment of “citizen soldiers” since World War II.[3] In addition, the U.S. Bureau of Labor Statistics has reported that approximately one in five veterans discharged from active duty between 2002 and 2005 had significant military service-connected disabilities.[4]

Employers usually try to treat returning veterans fairly but lack clear guidance from state and federal governments regarding USERRA requirements.[5] This is particularly the case with smaller to mid-size business organizations.

This article will discuss the re-employment rights of the returning veteran as well as the concomitant requirements of the employer. The authors will provide an overview of the Department of Labor’s Final Regulations interpreting USERRA, which can be accessed directly at Most importantly, the authors will offer practical, viable options to the employer in order to maximize the utilization of the citizen soldier and to ensure USERRA compliance.

Leaves of Absence Policies

In the United States, Leaves of Absence policies relate to Pregnancy Disability Leave, Family Medical Leave, Disability Leave, Sick Leave, Jury Duty Leave, Workers’ Compensation Leave, State Disability Leave, and Military Leaves of Absence. When employees serve in the military during their employment, the company is required to either hold their jobs open or re-employ them in similar positions when they return from their military duties.

The Veterans’ Benefits Improvement Act, enacted by Congress in 2004, requires all employers to provide a notice of rights under USERRA to all persons entitled to military leave of absence rights and benefits. Virtually anyone who has been absent from work due to “service in the uniformed services” is protected by these laws. Military service includes: initial duty for training (e.g. basic training), inactive duty training (e.g. weekend type training), active duty training (the typical two-week summer camp training), and actual military service (active duty).

Military leaves of absence may be almost any length, with a maximum cumulative leave of five years. When the employee’s service is over, they must provide notice of intent to return to their employer. Under most circumstances, the employer must re-employ the employee.

Once the veteran has been re-employed in their job, they cannot be fired for one year, except for cause, regardless of the period of their active duty. USERRA requires employers to “promptly re-employ” an eligible returning veteran in an “appropriate position.” In most cases this must occur within two weeks of the veteran reporting back to work.

The definition of “Employer” as set forth in USERRA is not the same as in other federal statutes: It includes “individual supervisors and managers” who have been delegated control over employment opportunities. These individuals may in fact be held personally liable as an “employer” under USERRA. However, entities to which an employer has delegated administrative functions-such as for an employee benefits plan-are not included in USERRA’s definition of “employer.”[6]

Spousal Rights

Interestingly, the state of New York has gone a step further by not only protecting the employment of military personnel but also in granting certain rights to their spouses. On August 16, 2006, the New York State Legislature enacted a statute requiring private and public employers to provide up to 10 days of unpaid leave to employees whose spouses are on leave from the U.S. Armed Forces, National Guard, or Reserves, while deployed during a period of war. This law applies both to full-time and part-time employees.[7]

Photo: ilbusca

Seniority, Status, Pay, Promotion, and Pensions

Federal law also prohibits taking discriminatory action against any military reservists by requiring them to use their vacation time when deployed or in training for any branch of the U.S. military. It should also be noted that when a veteran is available to return to work, they are entitled to all seniority-based benefits held prior to being ordered to active duty and any other benefits that they would have earned had the employee not served in the military.

Many employers are unaware that USERRA requires that re-employment of returning service members must be in the same seniority, status, and pay that the employee would have achieved if they had not been called to active duty and remained continuously employed with their employer. Not only must the employer award the returning veteran any pay increases and promotions they would have received, but these must be applied retroactively-effective as of the date they would have been made had the employee not been required to report to active duty.

Practically speaking, many service personnel are reluctant to make an issue of “return to an appropriate position,” and tend-if they wish to have long-term employment at the business-to not complain. There is a concern that complaining too much may affect long-term relationships with the business for a short-term benefit.

There are also issues regarding whether a promotion was based upon a test. Thus if a proficiency examination were part of the promotion process, the returning service member may not qualify for the promotion. Without such testing, the theory is that the service member is on an elevator. When he steps off the elevator for military service, the elevator continues. Upon return to the business, the service member is entitled to be at the elevator’s new level.

USERRA also affords protection to re-employed service members relative to pension benefits. Military leave must be treated as service with the employer for pension vesting and benefit accrual purposes; the employer cannot treat them as if they had a break in service.

Veterans Returning from War with Various Types of Disabilities

Some employers are privately reluctant to hire people who have any disabilities. They assume that an applicant with a disability will not be able to fully handle a particular job. With regard to U.S. military veterans returning home from the Iraq and Afghanistan wars, this assumption is not only inaccurate; in most cases it is also illegal. The U.S. federal government and many individual state governments have laws prohibiting discrimination based on disabilities.

In 1990 the U.S. Congress passed the Americans with Disabilities Act (ADA), which is administered by the Equal Employment Opportunity Commission (EEOC). This federal law prohibits employers of 15 or more employees, in both the private and public sector, from discriminating against qualified individuals with disabilities in hiring and employment decisions. If a person is qualified to do the work, or to do it once reasonable accommodations are made, employers must treat that person the same as all other applicants and employees.[8]

To have a qualified disability protected by the ADA laws and regulations, a person must have a physical or mental impairment that substantially limits one or more life activities. Under the ADA, “life activities” include: walking, speaking, seeing, hearing, sitting, standing, lifting, and performing manual tasks. The idea of a “reasonable accommodation” means that employers have the responsibility to make some changes to help a disabled person do a job.[9]

For example, if a veteran returns to work with any type of leg injury that affects their ability to walk, employers will be required in a very timely manner to provide accommodations in their workplace. Some examples would include, but not be limited to: ensuring accessibility to existing facilities used by employees such as exits, entrances, and restrooms; acquiring new workplace stations that accommodate the disabled veteran; and modifying equipment or other required work-related devices for the veteran’s use.

Other employer requirements may include modifying the work schedule to enable the employee to perform the “core” content of the job for which they are qualified. Employers must keep in mind that these requirements for “reasonable accommodation” also apply to company-sponsored training programs and social events.

Perhaps the most challenging scenario for an employer is when a returning veteran suffers from post-traumatic stress disorder or other psychological disabilities as a result of their military service. In such a scenario the employer will be required to possibly modify the employee’s work schedule and policies to facilitate appropriate medical treatment and perhaps to provide some degree of accommodation through “job re-training.” The employer must also keep in mind that even though reasonable accommodations must be made to allow the employee the schedule flexibility to see various health care providers, the need for confidentiality in the workplace relative to these matters cannot be overstated. It is imperative that these matters be treated with the highest level of confidentiality.

At every level the returning war veteran employees must be given the same benefits and privileges of employment as those given to all other employees. However, a key point on this subject is that employers will not be required to lower the quality of their work or production standard, but rather to provide accommodations so that the returning veteran-because they have the necessary work knowledge and experience-will again be productive in their work environment

Employers have the right to ask questions such as: Do you need any reasonable accommodations to perform this job? If the answer to this is “yes,” the employer should then ask: What accommodations do you believe you need to satisfactorily perform the job? Employers will be expected to assist returning veterans in assessing whether they will need any type of accommodation in order to meet job requirements and the expected level of performance.

Employees who supervise other workers are required to receive training related to persons with disabilities. Many employers are not clear about these laws or actively attempt to ignore them.

However, even in cases where employers are in the midst of financial difficulties-or even in the case of layoffs-courts have regarded veterans as a special class of employee to whom special rules apply.

In 2006 a U.S. District Court in Colorado ordered Agilent Technologies to pay Lieutenant Colonel Steve Duarte, a Marine Corps Reservist who was deployed to Iraq, $383,761 for terminating him only a few months after he returned from active duty. Agilent viewed the termination as necessary because it was contending with financial difficulties. However, the presiding judge viewed the situation differently. The judge was of the view that, “Col. Duarte paid a steep price for his military deployment during his employment with the company and he deserved better.”[10]


There are essentially only two positions that employers may assert if they wish to be relieved of their obligations under USERRA. First is Impossibility, which may apply to situations such as reductions-in-force. It does not apply to situations where an employer would have to re-assign current employees to re-employ the veteran.[11]

Second is the defense of Undue Hardship. Unlike the defense of Impossibility, an employer may assert the defense of Undue Hardship to justify not having to re-assign an employee from his or her current job to accommodate the war veteran. To prove Undue Hardship an employer must show that the war veteran is unable to perform the job he or she held prior to being called to active duty.[12] The employer must, however, at least make reasonable good faith efforts to re-employ the war veteran in a job that is comparable to the former position in both job responsibilities and compensation.[13]

Advanced Planning

Most military commands will work with the employer to try to avoid a hardship to the business as a consequence of a deployment. There are special offices available at most commands to assist both the soldier and the employer, including the soldier’s individual unit, the superior headquarters judge advocate offices, and the human resources sections.

The employer should work out a plan with the citizen soldier employee in advance regarding notification of when their military duty is expected and for what length of time. If the employee has essential skills needed by the company, the deployment can sometimes be deferred to another date. The military wants its citizen soldiers to have minimal stress resulting from deployment and return to the community.


Many of our citizen soldiers return to work with excellent technical skills in areas such as computer and information technology, project management, and operations efficiency as well as excellent team-building skills, and leadership skill-sets. In terms of personal and professional characteristics, they return with the ability to focus on clearly defined expectations, function well in a results-oriented environment, handle themselves in a complex work environment, and function well in high pressure and stress environments.

In the wake of the wars in Iraq and Afghanistan it is particularly important to recognize the significance of the military’s role in today’s society and to understand the employer’s responsibilities as well as the implications of providing sources of employment for our military veterans returning from war. A good way to ensure that a citizen soldier will be a successful part of your business is to know the guidelines of employment rights in advance.

Can we ask our soldiers to deploy to train or fight our wars, and then not get their jobs back when they return? We all have a responsibility.

Action Steps for Employers

  • Carefully review the Employee Handbook/Policy Manual to make sure that it is up to date and in compliance with all new state and federal laws.
  • Review the company’s recruiting and hiring practices to ensure that all activities, policies, and procedures in this important area of employment meet current legal guidelines for the recruiting and hiring of employees.
  • Establish “job descriptions” for all positions in the company. It is extremely important for employers to clarify the “core requirements” and “essential skill-set and knowledge needs” for each position. Employers should document all “essential job functions” for important job positions accurately and realistically. Employers must stay current, be flexible, and review job descriptions with current and potential employees.
  • Review all policies related to leaves of absence. These policies should not only be updated and in full compliance with current laws, but employers must make sure that all policies in these areas are applied “consistently” and “equitably” within the organization.
  • Familiarize yourself with the current laws and regulations pertaining to Military Service Leaves of Absence.
  • Familiarize yourself with the current laws and regulations covered by the Americans with Disability Act (ADA).
  • Obtain expert advice regarding the “reasonable accommodations” to be considered for employees or job applicants with any type of disability. Examples of “reasonable accommodations” include (but are not limited to): modifying an employee’s work schedule; providing an interpreter; making all physical facilities accessible; and acquiring accessibility equipment. This reasonable accommodation obligation is an ongoing duty and may arise at any time.
  • Familiarize yourself with all employee benefits (including health insurance coverage). Returning veterans will be entitled to their benefits in the areas of health insurance, 401K participation, company profit-sharing plans, group term life insurance policies, disability insurance coverage, cafeteria plans, and other employee benefits.
  • Understand the obligations and the legal rights and entitlements of employees pertaining to “General Notice of COBRA Healthcare Insurance Continuation” coverage.
  • Review all “Workplace Safety” policies. Ensure compliance with all OSHA (U.S. Occupational Safety and Health Administration) and Cal-OSHA, which requires employers to provide a safe and healthful workplaces for employees. There are severe penalties levied for violation.

Additional References

[1] Uniformed Services Employment and Re-Employment Rights Act of 1994, 38 U.S.C. ; 4301:4334 (2005).

[2] Heather DePremio. “Article, Essay & Note: The War Within the War: Notice Issues for Veteran Reemployment,” Naval Law Review, 53, (2006): 31.

[3] National Veterans Foundation. “Facts About Veterans: Needs and Solutions,”

[4]Veteran says he was forced out of VA job,” Associated Press, May 11, 2006.

[5] Gil A. Abramson. “Commentary: Employers need guidance when soldiers come back to work,” St. Louis Daily Record/St. Louis Countian, February 5, 2006, Commentary Section.

[6] “DOL Finalizes USERRA Regulations Detailing the Reemployment Rights of Military Service Members,” Mondaq Business Briefing, January 10, 2006.

[7] Lauren Malanga Casey, Epstein Becker & Green P.C. “Employers’ Obligations Extend to Military Spouses,” New York Employment Law Letter, (New York, M. Lee Smith Publishers: 2006): Sec. 202-i.

[8] California Chamber of Commerce. “California Chamber of Commerce Employer Guidelines,” California Chamber of Commerce Newsletter, 2007 Business Issues and Legislative Guide, May 14, 2007.

[9] Equal Employment Opportunity Commission. California Chamber of Commerce Newsletter, 2007 Business Issues and Legislative Guide, February 1, 2007, page 2. California Department of Fair Employment and Housing. California Department of Fair Employment Legislative Guide Journal, Significant Litigation Section, (05/14/2007): 41. 38, U.S.C. ; 43 (2007).

[10] “Rehire Veterans,” The Washington Times, March 22, 2006, Editorial Section, at A16. Marcel Quinn. “COMMENT: Uniformed Services Employment and Reemployment Act (USERRA) – Broad in Protections, Inadequate in Scope,” University of Pennsylvania Journal of Labor & Employment Law, 8, (2007): 237.

[11] 38 U.S.C. ; 4312(d) (1994).

[12] 38 U.S.C. ; 4312 (d)(1)(B); 38 U.S.C. ; 4312(d)(2)(B) (1998).

[13] 38 U.S.C. ; 4312(d)(1)(B); 38 U.S.C. ; 4312(d)(2)(B) (1998).

About the Author(s)

Jeffrey Schieberl, JD, has several years of senior management experience. He has served as president/CEO of a California corporation, vice president of Law/Government Relations of another California corporation, gubernatorial appointee to an Interstate Energy Commission and as executive director of an industry association. Dr. Schieberl has been a member of the Pepperdine University practitioner faculty for more than fifteen years. He earned his BA degree at the University of Southern California, received his MBA degree from Pepperdine University, and was granted a JD degree by Southwestern University School of Law. For further information go to His consulting practice provides his expertise to clients relative to a variety of issues.

Charles P. Leo, PhD, earned his BS in psychology from the University of California at Berkeley and earned his MBA in labor economics at UCLA. He also earned his PhD degree in organizational psychology from UCLA. He has more than 30 years of executive-level business experience in the areas of human resource management, employment law, strategic planning, and organizational development. Leo has held significant consulting assignments with more than 250 organizations throughout the country in both the private and public sector. The majority of those assignments were multi-year engagements. He has simultaneously served as an adjunct professor of management at Pepperdine University for more than 25 years, and is currently a full-time practitioner faculty member in the Applied Behavioral Science department at the Graziadio School of Business and Management. Leo has published numerous articles in both academic and professional journals. He is a member of PIHRA (Professionals in Human Resources Association) and the APA (American Psychological Association) and has provided consulting advice to companies including TRW, Bank of America, the California Department of Transportation, Zenith Insurance Company, Warner Bros. Studios, Toyota Motor Company, and the U.S. Social Security Administration. For further information go to - His consulting practice provides his expertise to clients relative to a variety of issues.


mark hoffman

May 11, 2011 at 7:32 am

I have a few questions about this. I recently returned from a deployment. Went back to my old jobs I had before my deployment. I’m sure raises went around and currently I’m only getting paid what I was before I left. No raise. Is there anything I can do about this. Another question is workers incentive. It was reset to zero when I started working again. Is this normal. I was close to a full 40 Hour work incentive and now nothing. Any help would be great.

Charles P. Leo, Ph.D.

May 13, 2011 at 4:58 pm

Firstly, the USERRA laws and regulations apply to all employers. With regard to your question about 40 hour full-time work status, when people return from military service they are entitled to any status and seniority benefits that they would have had if they had not served in the U.S. military. I.e. You are entitled to receive the same benefits and work privileges that you would have earned prior to being ordered to serve in the military.

With regard your question about raises, the key issue here is were the raises awarded to people based on new skill-sets and a greater knowledge-base that they have achieved. I.e. An employer is allowed to base raises on the basis of new skills being contributed to the organization. With regard to your question, are any new employees receiving a high pay than you, for the same duties and responsibilitiies that you had before you were called into military service? If you want to research the pay raise issue further, you might want to speak with a representative at either the USERRA or State Labor Board local offices.

I wish you the best of success.


May 17, 2011 at 5:53 am

I was deployed for one year and am now trying to get my full-time job back that I had before I left. Due to the times (slower/less work), they’ve hired me back but only on a part-time and as needed position. Is my company required to hire me back full-time and/or do they have a certain time-frame to find a full-time position for me. If so, what how long do they have to find me a full-time position.


June 8, 2011 at 10:52 pm

I sent my intent for reemployment letter to my Federal Employer and was rehired to my former position 31 Oct 2010. However I identified the need for reasonable accomidations for my PTSD, TBI and other injuries. My position was a firefighter. After providing all medical information to the employers Doctor, by the end of November. I was not able to perform any light duties. So I was on Annual Leave, Sick leave and finaly Leave without pay until my removal 7 May 2011 for Medical Inability to Perform. I applied on December 15th for immediate retirement and Disability retirement. Both were sat on until I was removed. Then I had to obtain them and send them myself to HRC. They inturn are sending it to OPM. I have to pay for my own medical and dental now for my family and am receiving SSDI. I understand that if my Disabilty Retirement is approved, it will all be back dated. My question is: Is this the way it is supposed to happen? I am also awaiting VA to make a decision on my Appeal/Notice of Disagreament. They low balled me. The Army Reserve gave me a regular reserve retirement. Can any of this be sped up/corrected etc?


Bryan Hill

November 17, 2011 at 1:08 am

Returning reserve E-8 Master Sgt., Afganistan (1-year) deployment. Upon arrival, back at job at local police department, with 12+ years of service, was informed of new policy where all returning veterens must see a psychologist 3 times within first six months of return. No testing but an informal conversation. Other employees of course not required to see the psychologist, other than prior to employment offer.
My question is: is it legal to treat veterans different than other employees in this way.

andrew arrien

December 7, 2011 at 6:55 pm

I served in Iraq for 120 days , now that it is close to the holidays everyone at my job site received a bonus check , mine was less because I was gone , I’m I entitled to the full bonus like everyone else?

Joe Haught

December 21, 2011 at 6:49 am

I am getting ready to come off of military orders. I do maintenance work for a realty company. They own several rental properties. Do they have the right to send me to another facility? I couldn’t find anything specific to that on the USERRA site. I need something in writing to take to employer. Thank you

Amy Fulton

January 13, 2012 at 5:56 am

I work for a small town Sheriff’s Department part time. Before I was deployed one of the full timers considered leaving. I talked to my supervisor and asked if I was up for the full time position. He told me I would be the first in line if the individual quit. I ended up being deployed and over half way through the deployment that individual quit. They hired a 19 year-old kid in his place. I have been back for 3 months now and have not been offered what was to be my job. I feel like if I make waves, there will be consiquences. THIS IS A VERY male dominated department. My question is, can they legally not give me the full time position because I was part time?

kitty wakter

February 9, 2012 at 7:23 am

i represent an employer — we would be interst in knowing how you answered rachel — as we have hired back a retunring vet — but do not have sufficient work for him and others employeed here — what is our legal obliation ?

K J Wells

March 22, 2012 at 1:29 pm

Do these employer obligations apply to an employee who leaves to voluntarily enter the military service, leading the employer to believe he has made a different career choice?


March 22, 2012 at 7:06 pm

We hire pilots and lease them out to foreign airlines. They are on contract with us and their compensation comes from the airline they are leased to. We have a defined contribution plan (described in the contract) and vesting is immediate. When a military member leaves on deployment and returns we comply with all requirements in terms of seniority etc. However we were told by the military (JAG in D.C.) that since the members are contract workers in defined contribution plans there was no need to fund the plan during their absence. Is this true? Can you quote the source for your answer? Thank you very much.

Joshua Farley

March 28, 2012 at 8:10 pm

Yes I was reading this article and I was wondering if my spouse would be protected under any from legal obligations. I am in the Army Reserve and lets say her employer was to terminate or hold her accountable for an un-excused absence because of me having to attend a weekend battle assembly; and her only means of transportation is the vehicle that I would be bringing to battle assemblies. If anyone can help me with this problem it would be greatly appreciated.


April 10, 2012 at 1:13 pm

I have an employee that is joining the national guard and I would like to know if we are obligated to hold his position sense he was not in the military when he was hired. And if you get a full time job with the national guard will leave our company to take that job. he will be in training for around ten months. Thank you


May 20, 2012 at 12:09 am

I am a reservist and have been on orders for about 28 months. I was laid off my civilian job while serving on active duty orders. What rights do I have as a Soldier ? My civilian employment is with the City.

Bruce L.D.

July 9, 2012 at 9:41 am

I fought in Iraq in 2008 I’m also a member of a union when I returned they left me on the out of work list for 7 months. I’m getting sick of all the lies all these laws are worthless and do nothing to help us


July 11, 2012 at 12:58 pm

My daughter was recently hired as a first-year teacher at our local Catholic school. Several years ago, a teacher at the school, who was a reservist, voluntarily went active duty. (This teacher knew that his contract was not going to be renewed because of low enrollment and other issues, though this was not put in writing.) When my daughter went to the school to sign her contract this week, she was told that the formmer teacher has recently requested his job back. When it was explained to him that another person was hired for the position, he seemed to back off, but refused to officially let the school know that he didn’t want the position. (The Archdiocese will not contract with my daughter until they get notification from the returning veteran.) I have learned that he is really in the running for a principal’s position at another school, but is stringing our school along until he knows for sure whether he got it. In the meantime, my daughter has lost her window of opportunity for finding another teaching position, and has lost her lease due to moving to town for this job. My question is — How long can this man go without committing one way or another? School starts in less than a month and lesson plans should be well underway. I’m all for hiring returning veterans, but I feel like he is abusing the system.


July 17, 2012 at 2:31 pm

i have a question- i employ 2 full time employees who are set to leave for approximately 8 months of training for the marine corps reserves
first, am i required to hold these positions for them, and also, they intend to leave employment a full 3 weeks prior to going to training- would this still constitute a military leave since they are essentially taking a 3 week vacation prior to any military obligation


August 26, 2012 at 3:30 am

PAY YOU TO GO TO SCHOOL!!??? HOOT! No you have to pay first. IF you get what the company calls a pasnsig grade they MIGHT pay the TUITION but seldom willl they pay for materials, supplies, books, etc. Usually they won’t adjust your work schedule to fit your class schedule either. Student Veteran BEWARE.


November 27, 2012 at 7:20 am


I was re-called to active duty for 3 years and during that time my civilian employer gave our yearly bonus am I entitled to any of the profit sharing checks for the previous years including up to the current?? please advise



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