The Court family has been proud to have representatives in active military service for our country through the wars and military operations that have unfolded in the Middle East. The newest Justice of the Supreme Court, Steven David, had a long and highly honored military career with exemplary service as the Chief Public Defender at Guantanamo Bay. Judge Marilyn Moores of Marion County is currently on active duty for a year in Afghanistan. Several other Judges have also served in the armed services while on the bench.
The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 USC § 4301 et seq., was enacted in 1994 to protect those who enlist to meet the needs of a voluntary military. USERRA was written to encourage non-career service in the armed forces, to minimize disruption to the lives of persons performing service, and to prohibit discrimination against persons because of their service. It does this by establishing the right of every enlistee to return to the employee’s current civilian job after the enlistee’s active military duty ends.
USERRA applies to every employer, including Indiana courts. Any person, institution, organization, or other entity that pays salary or wages for work must comply with USERRA. 38 USC § 4303(3) specifically includes state, federal and governmental agencies. Any employee who leaves civilian employment because of a call to active duty in the armed forces is entitled to re-employment in the civilian job at the end of active duty service if minimal requirements are met. Attending a service academy is considered active duty service under USERRA. The requirements to maintain a right to the former civilian job are that:
- the employee, or an appropriate officer of the uniformed services on behalf of the employee, give notice to the employer of the active military duty;
- the total length of military duty away from the civilian employment does not exceed five years;
- the employee is honorably discharged or in honorable status at the end of active duty, and
- after active duty ends, the employee makes a timely request for reemployment. 38 USC § 4312.
The initial notice by the employee that the employee has been called to duty may be verbal or written. In fact, it can consist of nothing more than a casual remark that the employee is leaving the job because the employee was called to active duty. USERRA encourages employees to give notice as soon as possible, but the law does not require any specific amount of notice. The Department of Defense does recommend to servicepersons that they give thirty days notice. If there is an immediate call to duty that precludes notice, notice is not required. The employer does have the right to ask for a copy of the military order, which may be provided before or after the employee leaves.
When the employee leaves the civilian job, the employee is not required to inform the employer to hold the civilian job for the employee. 20 C.F.R. § 1002.88 provides:
. . . When the employee leaves the employment position to begin a period of service, he or she is not required to tell the civilian employer that he or she intends to seek reemployment after completing uniformed service. Even if the employee tells the employer before entering or completing uniformed service that he or she does not intend to seek reemployment after completing the uniformed service, the employee does not forfeit the right to reemployment after completing service. The employee is not required to decide in advance of leaving the civilian employment position whether he or she will seek reemployment after completing uniformed service.
The employee can formally resign or retire and still enforce a return to civilian employment. When the active duty ends, the employee’s only obligation is to make the request for restoration within specified periods of time, and for periods of service of more than thirty days, to produce documentation of the service if requested by the employer. For brief calls to duty of less than 30 days, the employee must report back to work at the end of an 8-hour rest period following completion of service. For periods of duty of 30 days to 180 days, the employee is allowed 14 days back at home before returning to work. For periods of duty of 181 days or more, the employee is allowed to wait up to 90 days before returning to civilian work. If the employee needs medical care as a result of the military service, the employee is given additional time to preserve the civilian job.
Like other employee protection statutes, USERRA has a provision that makes it illegal to retaliate against an employee for use of USERRA rights. It is also illegal to retaliate against an employee who helps someone else in the use of USERRA rights. 38 USC § 4311. There are some exceptions to being allowed to USERRA’s right to return to employment, such as where the civilian job was only a temporary position. USERRA has specific provisions regarding accumulation of time benefits, discharge from employment after a return from the military, and pension retention.
In addition to USERRA, Indiana has enacted laws to encourage and reward this military service. Indiana Code § 10-16-7-5 requires that state and local governmental agencies allow employees to leave for training or active duty, and to maintain for up to fifteen days the employees’ regular pay while on training or active duty. Because individual employers rarely have to apply the statutory rights of military employees, it is best to consult with an attorney well-versed in employment law if an employee leaves for military duty.
If your court needs a consultation regarding statutory rights of military employees, contact the author at 317-234-3936 or email her at