Q: If an employee resigns to enlist in the military, is that a voluntary quit? Should we issue a pink slip indicating "voluntary leaving"?

Call Mark Soycher at the HR Hotline: 860.244.1900.
Call Mark Soycher at the HR Hotline: 860.244.1900.

A: You should not treat this as a voluntary quit or even an employment separation, and do not give your departing employee an unemployment notice, or "pink slip." Instead, you should consider the employee on a leave of absence, with reinstatement rights and other employment protections provided in the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Under this law, an employee may be absent for a cumulative period of up to five years for military service and still retain reemployment rights.

In addition, USERRA protects a reinstated employee against discharge, except for cause, for six months after a military service absence period of one to six months, and for one year after a military service absence of more than six months.

Federal regulations clearly state that an employee leaving a job for military service is not obligated to decide about seeking reemployment until after completing the uniformed service. An employee who gives a written resignation notice stating he or she does not intend to seek reemployment with your company after completing military service may lose certain seniority rights, but only if you can prove that the employee was aware, at the time of resignation, of the specific rights and benefits to be lost.

In any event, a resignation notice and expressed intent not to seek reemployment cannot, under USERRA, be the basis for denying the right to seek reemployment should an employee do an about-face and later seek his or her old job back.

Depending on the duration of military service leave, a returning employee must report back and request reinstatement within certain time periods. For service of one to 30 days, an employee seeking reinstatement must report back to work by the beginning of the first regularly scheduled work period (e.g., shift) that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an eight-hour rest period.

For a period of 31 to 180 days, a returning employee must submit an application for reemployment no later than 14 days after completing military service. And for service of 181 or more days, the employee must seek reemployment no later than 90 days after completing military service.