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Feb 22, 2017

Can an ex-employee who joined the military demand their job back?

Q&ALeave Laws 

Q: Over four years ago we threw a big party for an employee who was joining the US Marine Corps. She never said anything about returning to work for us and we understood she was pursuing a military career. Yesterday she unexpectedly showed up and asked for her job back. Do we have to rehire her?

A: Yes. Generally, former employees who have served in the US military have up to five years after entering the service to return to their former job. The right to reemployment is guaranteed under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), provided the eligibility requirements have been met. On top of that, the law’s “escalator principle” entitles the returning service member to the accrual of any seniority-based benefits to the same extent as if the employee never left employment. The returning service member does have to give you notice that they are seeking their job back, and the amount of notice depends on the length of service. A former employee who has been gone 180 days or more is required to provide you at least 90 days’ notice that he or she is demanding to be rehired. But, ultimately, you will need to reinstate the individual if they are requesting their job back within the time limits allowed by USERRA.

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