USERRA

11dls55 · November 2007

We have an employee who is resigning his position in December to join the Marines. He plans to make a career in the Marine Corp. I have been reading through the USERRA regs and if I understand it correctly this employee could change his mind anytime during the next five years and we would have to reinstate him to his current or comparable position. Does anyone have experience with this?

Jake2 · November 2007

You are right -- a "resignation" generally means nothing for an employee who is qualified for protection under USERRA. So long as the employer is on notice that the employeee is leaving his/her position for qualified service, the employee has the right to reinstatement, assuming he or she applies for reemployment within the USERRA time limitations. For more info on USERRA, you might also want to check out the Reserve Officers Associaiton law review article archives . . . See http://www.roa.org/site/PageServer?pagename=law_review_63 ; There is also a good one on "resignation" and USERRA at http://www.roa.org/site/PageServer?pagename=law_review_63

11dls55 · November 2007

Thanks Jake2. As hard as it is to believe, this is our first experience with this.

Jake2 · November 2007

If you look carefully at the resignation article, it seems to imply that a very carefully worded resignation/separation letter, explicitly stating that the employee does not intend on returning and that USERRA would otherwise give him the right to reinstatement, MAY suffice. However, I would not count on any guarantee that the employee is fully waiving his rights. The USERRA is so widesweeping that it would be an uphill fight to try and prove that the employee waived his rights under USERRA.

USERRA

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