Suitable Work SW 305
Title 38, Chapter 43, Sections 4301 through 4307 of the United States Code, specify circumstances under which the claimant, who has satisfactorily completed military service, has certain rights to return to a preservice employer.
A claimant with reemployment rights may be subject to disqualification under Section 1257(b) of the Unemp. Ins. Code if the individual has refused to apply or has refused reemployment with the preservice employer for reasons which do not constitute good cause.
There is no voluntary quit issue as a result of failing to return to work for a preservice employer at the end of the military service. Failure to exercise reemployment rights can raise a suitable work (SW) or an availability (AA) issue, depending upon the reason the claimant failed to return to the preservice employer. Refer to the appropriate BDG volume that covers the basis for the refusal for eligibility information.
A. Reemployment Rights
To be entitled to reemployment rights, (1) a member of a reserve component returning from completion of initial active duty for training or (2) a veteran of active duty must:
- Leave a position (other than a temporary position) with a private employer, the Federal Government, or a State or local government to enter the Armed Forces. Part time and seasonal positions are not necessarily temporary positions.
- Satisfactorily complete the period of active duty and have a certificate to that effect. Persons whose active military duty began after June 23, 1948, generally are eligible for reemployment rights if they served not more than four years (five years if extended at the request of the Government). Only active military duty entered from the job for which reemployment rights are claimed is included in computing the time limit on service.
- Be qualified to perform the duties of the position. An employee who is disabled during military service and cannot perform the duties of the otherwise appropriate job may be entitled to the nearest comparable job he or she is qualified to perform.
- Apply for reemployment within 90 days after separation from military service or from hospitalization continuing after separation for not more than one year. Application must be made by reservists within 31 days after separation from the completion of initial active duty for training.
Employees who are required to report for the purpose of being inducted into the Armed Forces, or those rejected for duty, also have reemployment rights. They are guaranteed a leave of absence for the entire induction process, including any examinations. Employees should advise their employers of the impending induction process and use no more time than is necessary to complete it and return home. Such employees should then report to work, after necessary rest time, at the start of the next regularly scheduled shift.
B. Reinstatement and Retention
An employee returning from military service is entitled to be rehired within a reasonable time after applying to the preservice employer. The employee is entitled to the position, pay level, and working conditions that would have been attained but for absence in military service. This could be the same job, a similar job, a better job, a lesser job, or no job at all. The exact job to which the returning employee is entitled depends on such factors as collective bargaining agreements, the employer’s personnel policies and practices, and changes in the employer’s business during the employee’s absence. In certain instances these factors may make it impossible or unreasonable for the employer to rehire the applicant.
A veteran returning to the preservice employer is entitled to be retained on the job for at least one year, unless discharged for cause or reached for layoff in accordance with a nondiscriminatory contract or established practice. A reservist who returns from initial active duty for training is entitled to be retained on the job for six months.
The employee generally is entitled to full credit for any job seniority lost as a result of military service. The length of service or seniority a returning employee has with the preservice employer usually includes:
- Employment with the employer before military service.
- A reasonable period between leaving the job and entering military service.
- The entire period of military service.
- The period between release from service and return to work.
Under some conditions, the adjustment of seniority may be deferred until after the returning worker has been reemployed and has met a special work or training requirement under a collective bargaining agreement or established practice. Upon completion of the work requirement, the employee is entitled to a seniority date that takes into account time spent in military service. Seniority protection is an important feature of the reemployment rights law because seniority often determines job assignment, pay, vacation value, pension rights and other benefits.
D. National Guard and Reserve Units
Almost all members of National Guard and military Reserve units take part in some type of training, whether weekend drills, summer camp or special training schools. To attend this training, reservists often have to take time off from their jobs. Federal law protects reservists against being fired or denied certain employment benefits because their military activities interfere with their jobs.
It should be noted that even though an employee returning from guard or reserve activities is entitled to be reinstated to his or her prior job, the employer may ignore or be ignorant of the law and not rehire the individual. In such cases the claimant is considered to be unemployed through no fault of his or her own.
When an individual has reemployment rights and fails to reapply to the preservice employer, he or she may be subject to a suitable work disqualification under the provisions of Section 1257(b). There is no separation issue under Section 1256 if the claimant fails to reapply to the preservice employer because the guard or reserve is the last employer at the time of filing a claim, not the preservice employer. (See SW BDG section that discusses the basis for the claimant’s failure to reapply.)
The following questions are frequently asked regarding National Guard and Reserve training.
- Is an employer required to excuse a worker to attend military training?
Yes. Federal law requires that when a reservist requests leave to attend military training the employer must grant it.
- When does the employee have to return to work after completion of military training?
The employee must return to work at the start of the next regularly scheduled shift after expiration of the last calendar day necessary to travel home from training or after he or she has had reasonable time to rest.
- Does the employee lose the right to return to work if he or she delays reporting beyond the time prescribed under law?
No. But the reservist will be subject to the employer’s rules pertaining to explanations and discipline when an employee is absent from work.
- May the employer demand to know exactly when the employee will return to work?
No. It is reasonable for the employer to want this information, but sometimes impossible for the reservist to furnish it. However, the employee should try to give the employer the approximate beginning and concluding dates of training as well as the approximate travel time involved.