Does an employer have to maintain a service member's recall rights when called to active duty while on layoff status?

If a service member is sent a recall notice during a period of service in the uniformed services and cannot resume the position of employment because of the service, the individual still remains an employee for purposes of the Act. Therefore, if a service member is otherwise eligible, the individual is entitled to reemployment following the conclusion of the period of service even if the person did not respond to the recall notice.

However, if a service member is laid off before or during service in the uniformed services, and an employer would not have recalled the person during the period of service, then the service member is not entitled to reemployment following the period of service. Reemployment rights under USERRA cannot put a service member in a better position than the individual would have obtained if the individual had remained in the civilian job.