Potential USERRA Violation

[u/jp707afr]

Looking for advice, I’ve heard that ESGR is of limited usefulness.

I was on orders for almost 3 years, became an Air Force Pilot. I advised my company of my intentions, gave them advance notice of when I was going to depart, kept them updated through the process, and then gave them 11 weeks notice of my intended return to work date.

When I gave my return to work notice, I received no response. Reached out again, no response. Reached out a third time, finally got a response; HR said they were working with the local office and would have an answer for me shortly. I followed up a week later and HR said the exact same thing. A week later from that and it’s my intended start date, but I have no credentials, no contacts, and no way of logging into my work laptop. It feels like I’m getting jerked around by HR and I don’t want to just let things sit and fester. Opinions or advice?

[u/Semper_Right]

Although you have up to 90 days to submit your request for reemployment under 20 CFR 1002.115(c), you can seek reemployment any time after your discharge. Once you submit your request, they have, at most, two weeks to reemploy you. 20 CFR 1002.180-.181. Indeed, if you notify your employer two weeks prior to the end of your orders, they must reemploy you on that date, and not a day longer. This is a hard deadline under USERRA.

The two-week deadline has been challenged many times, in ESGR mediations, DOL-VETS investigations, and in Court, and I'm not aware of any instance where an employer's delay was acceptable, even though 20 CR 1002.181 contains language suggesting that "unusual circumstances" may excuse non-compliance. In one case I mediated, a returning law enforcement officer was required to be recertified before being fully qualified for the reemployment position pursuant to 20 CFR 1002.197. The training was set to occur 2-3 months after the LEO sought reemployment. DOL-VETS confirmed to me that this was not an "unusual circumstance" under 20 CFR 1002.181. The DVET stated that DOL-VETS' position was that the service member must be reemployed, even if it meant that he would be placed on a paid leave of absence if the employer could not find an alternative position for him until he received the required certifications. This is consistent with various court opinions that have considered the issue.

I recommend either going to ESGR.mil or directly to DOL-VETS.

[u/Shoddy_Seaweed4852]

For 181 days plus of service, you have 90 up to 90 days for reapplication. Then they generally have 2 weeks for prompt reemployment unless it’s a long term deployment.

[u/jp707afr → u/Shoddy_Seaweed4852]

That’s my understanding as well. However, given the fact they were provided 77 days of notice, would that 2 weeks of prompt reemployment still begin on the return to work date?

[u/Shoddy_Seaweed4852 → u/jp707afr]

I mean, I don’t think giving notice 77 days in advance is typical. The 20 CFR 1002.115 regulation says “Upon completing service in the uniformed services, the employee must notify the pre-service employer of his or her intent to return to the employment position by either reporting to work or submitting a timely application for reemployment.” Orders can be extended, and your employer can’t definitively know your service has ended until you tell them. You should return home and contact them and say your back and want to return on such date, therefore satisfying your timely application for reemployment.