Can My Employer Fire Me If I'm Deployed Overseas?

The USERRA protects the rights of service personnel in civilian jobs.

The USERRA protects the rights of service personnel in civilian jobs.

Employers can’t fire military personnel simply for being deployed, whether overseas or elsewhere. The federal Uniformed Services Employment and Reemployment Rights Act protects all service people in the workplace, including men and women in the U.S. Army, Marine Corps, Air Force, Navy and Coast Guard. If you’re fired, your employer might have to reinstate you under the USERRA, which also protects your pay along with the benefits you and your family receive.

USERRA Eligibility

“Uniformed service” includes active duty; basic training, active- and inactive-duty training, which includes drills; and funeral-honors duty, which the National Guard and reservists perform. The USERRA covers the employment status of all service people engaged in any of these phases of military duty.

Job Reinstatement

Your employer must reinstate you in the job “you would have attained” had you not been deployed, as long as you return with honor status. The job might be the one you had or one into which you were promoted before deployment. If you were promised a promotion on your return, your employer must grant it, even if another employee must be replaced. Once you’re reinstated, you can’t be fired for a year, unless for cause. The “reinstatement” rule also applies to your previous pay level and any seniority you held.

Leave Requirements

Military leave can be any length, including up to five total years of service. You may use vacation or personal time you’ve accrued to cover leave, but your employer can’t force you to do so. Your employer must notify you of your leave and benefits rights under the USERRA. And you must let your employer know as soon as possible if you’re returning to work after deployment. Depending on how long you're deployed, you might be entitled to additional leave before resuming your work schedule.

Pay

The USERRA doesn’t require employers to pay for military leave. However, the Fair Labor Standards Act requires employers to pay workers on temporary military leave their regular pay, plus any overtime. Some employers pay full wages minus military compensation, but it’s not required. Also, the law forbids employers to dock pay for exempt service people on leave for the weeks in which they worked.

Benefits

The USERRA requires your employer to provide you and your family up to 24 months of continued health-care coverage, a benefit you would have otherwise lost because of the leave. You and your dependents are also eligible for up to 18 months of continued coverage in your employer’s group health plan under the Consolidated Omnibus Budget Recovery Act, known as COBRA. Military leave is counted as time earned in vesting and accruing benefits in your employer’s retirement plan. [ref. 2, Q&] However, the law doesn’t require employers to continue funding defined contribution plans, such as a 401k, during military leave.

Liability

The USERRA includes managers and supervisors, or any administrators who control employment functions, in its definition of "employer." This means that your immediate boss – not just the company -- can be held personally liable for denying you your military-leave rights. Benefit-plan administrators, however, are exempt from liability.

 

About the Author

Valerie Bolden-Barrett is a writer, editor and communication consultant specializing in best business practices, public policy, personal finance and career development. She is a former senior editor of national business publications covering management and finance, employment law, human resources, career development, and workplace issues and trends.

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