How does a layoff affect a returning service member's reemployment rights?

A service member is an employee for purposes of USERRA if the individual is:

• Laid off with recall rights;

• On strike; or

• On a leave of absence.

If a service member is on layoff and begins service in the uniformed services, or laid off while performing service, the individual may be entitled to reemployment on return if the employer would have recalled the person to employment during the period of service.

A veteran acquires not only the same seniority he or she had, but also, the military service is counted as service with the employer so that the veteran does not lose ground by reason of the absence. But USERRA does not guarantee a veteran against loss of position or loss of seniority by reason of the absence. Employers must be flexible to respond to changed business circumstances, including reductions in force.

In the event of layoffs, employers must be able to show that a particular job would have been eliminated regardless of the fact that an individual went on military leave. There needs to be some evidence of the necessity of cutbacks due to the state of the organization.

If there is evidence of financial constraints in advance of the notice of military leave, the employer will be in a much safer position to claim that a position was eliminated lawfully and not as a means of denying a returning veteran reemployment. This would arise especially in the case of positions horizontal to each other, only one of which is eliminated.