by Allen E. Linken, LTJG, JAGC, USN

Imagine this scenario: You are managing a small- to medium-sized business when one of your vital employees tells you that she is being recalled for active duty to go to Iraq. Your first reaction is that you hope she remains safe.

However, your attention immediately turns to running your business and getting a replacement for her. Within a few weeks, you interview and hire her replacement, and he is a pleasure to work with. He is always on time, always industrious, and always going the extra mile for you. Fast forward to 8 months later. Your former employee shows up at your business, fresh off the plane from Iraq, still in her camouflage, and requests her old job back. What do you do? What do you say to her?

These are issues that are facing businesses across the country. Reservists are being called up at a record rate, and they will not be in Iraq or Afghanistan forever. They will return and what will they be told? What are their rights? What about the rights of the business?

The short answer to whether your reservist service member can get her old job back, even with your new go-getter, is yes, but only if she meets certain conditions. In 1994, President Clinton signed the Uniformed Services Employment and Reemployment Rights Act (USERRA), which contemplated this exact situation. The individual must meet five conditions, or "eligibility criteria." The individual must:

1. Hold or have applied for a civilian job. (Note: Brief, nonrecurrent periods of employment with reasonable expectation of continuing for a significant period do not qualify for protection.)
2. Have given written or verbal notice to the civilian employer prior to leaving the job for military training or service except when precluded by military necessity. (The law does not specify how much advance notice is required, but the U.S. Department of Defense advises members of the National Guard and Reserve that they should provide their employers as much advance notice as they can.)
3. Not have exceeded the 5-year cumulative limit on periods of service.
4. Have been released from service under conditions other than dishonorable.
5. Report back to the civilian job in a timely manner or submit a timely application for reemployment. (For periods of service of up to 30 consecutive days, the person must report back to work for the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and safe transportation home, plus an 8-hour period for rest. After a period of service of 31 to 180 days, the person must submit a written or verbal application for reemployment with the employer not later than 14 days after the completion of the period of service. After a period of service of 181 days or more, the person must submit an application for reemployment not later than 90 days after completion of the period of service.)

1. Prompt reinstatement (generally a matter of days, not weeks, but will depend on the length of absence).
2. Accrued seniority, as if continuously employed. This applies to rights and benefits determined by seniority as well. This includes status, rate of pay, pension vesting, and credit for the period for pension benefit computations.
3. Training or retraining and other accommodations (particularly in cases of long periods of absence or service-connected disability).
4. Special protection against discharge, except for cause. The period of this protection is 180 days following periods of service of 31 to180 days, and for periods of service of 181 days or more, it is 1 year.

If you want more information, employers should contact the National Committee for Employer Support of the Guard and Reserve (NCESGR). You can contact a NCESGR ombudsman toll-free at 800-336-4590. Ombudsmen are trained to provide information and informal mediation services concerning civilian job rights of National Guard and Reserve members.