Military LOA (USERRA) vs. Resignation

cb499

Guidance please!! My understanding of USERRA is that, simplistically, it allows the employee to go on active duty while retaining their job. We get that and strongly support it. If the employee opts to actually resign vs. take a LOA, is this a no-harm, no-foul situation? Upon the end of service, we're still required to reemploy him (correct?), and probably with the same rights, seniority and benefits he had upon leaving (or do those go way with the resignation?). 

Should we recommend to the individual that they NOT resign? He's stating he wants to come back to his job, so why would we "allow" him (or want him) to resign? I want to be sure we've educated him sufficiently so that he's making an educated decision...and do what's intended by the law.

Joy1

You are right that the resignation is of no significance as to reinstatement. The employee still has the right to reinstatement at the conclusion of USERRA covered leave. However, I think if his resignation is in writing and uneqivocal, he may be relinquishing his rights to the accrual of non-seniority based benefits during the leave -- and should he change his mind and wish to return after military service, he will be reinstated, but may not be eligible for the nonseniority bassed benefits he would otherwise be entitled to. Really, there is no downside I can think of for just requesting a military leave of absence. It would be good advice to do so (unless there are other factors we are unaware of).

gi_janearng

Explain to him that resigning means he is voluntarily ending his employment with your company which leads you to NOT being required to hold his position for him (or one equal to it) under USERRA.  If you really want thim back, tell him that you don't want him to resign because of this. 

That is so odd.  I can't believe someone would have such a hard time grasping that.  Did he give you a written resignation?  Maybe you need to point him to his local ESGR representative who could explain that better to him?   

I should add though that if he wants to resign, he probably should do so and express in writing that he is resigning with intent to return.  If I remember correctly, that's is the only way he does not forfeit his USERRA rights. 

cb499

His intent to return was expressed in writing.

Thank you both for your assistance! You've been a big help.

gi_janearng

He is fine then and as long as your company has no problem with it, you all should be good to go.

Just know that USERRA does not specifically address resignation.  Though there have been legal proceedings regarding employees resigning and then wanting to come back to work, usually the military member has prevailed because he or she has given advance notice to their employer with intent on returning.  It is still recommended though that military members stay away from using the term "resigning" just to be on the safe side.  I would stress that to him and tell him there is nothing wrong with having a military LOA in his file.