ESGR helps Service members, employers, and members of the military chain of command understand each other’s rights and responsibilities.
Employers regularly contact ESGR seeking information regarding an employee’s military service requirement. Below are three concerns often expressed by employers. ESGR coordinates with the Military Departments and Reserve Components in an effort to address these common employer questions.
Today’s military service requirements often require Reserve Component members to serve more than the traditional one weekend a month and two weeks a year. When the absences of an employee start to have a negative effect on the employer, Department of Defense Instruction 1205.12 permits the employer to express their concerns over the timing, frequency and duration of the uniformed service to an appropriate military authority. This instruction directs the Reserve Component representative to consider written requests from an employer to adjust the Service member's absences from civilian employment, unless prevented by military necessity, or it is impossible or unreasonable to do so under the circumstances. While it is not always possible to accommodate an employer's request to adjust periods of uniformed service, this type of communication may be helpful in mitigating some service-related employment conflicts.
Under USERRA, Service members have reemployment rights with any single employer for up to 5-cumulative years. However, USERRA provides certain exceptions to this 5-year service limit, including any period of service certified as exempt by the Service Secretary concerned. Many employers and Service members have questions about whether a period of service is considered exempt, or if it counts against the 5-year service limit. The following resources may help:
38 USC 4312: Reemployment rights of persons who serve in the uniformed services. Section 4312(c) identifies the authorities and types of service that do not count against the 5-year limit.
The Secretaries of the Air Force, Navy, Army and Commandant of the Coast Guard have signed USERRA policy memorandums outlining which types of service are exempt from (not counted against) the 5-year cumulative limit, and what office can assist in determining if a period of service is exempted from the 5-year limit. The contact information for these offices and links to the service-specific policy memorandums are listed below.
Warning: Please use encryption if sending files with Personally Identifiable Information (PII). You may use sites such as DoD's SAFE (Secure Access File Exchange) to safely transmit files with PII. When using SAFE, a request must originate from a DoD user if you access the site using a non-DoD account. See the following for instructions: https://safe.apps.mil/about.php
U.S. Army: Army Reserve
US Army USERRA policy memorandum
U.S. Army: Army National Guard
U.S. Air Force: Air National Guard
US Air Force USERRA policy memorandum
U.S. Air Force: Air Force Reserve
U.S. Navy: Navy Reserve and Marine Corps Reserve
US Navy and US Marine Corps USERRA policy memorandum
U.S. Coast Guard: Coast Guard Reserve
US Coast Guard USERRA policy memorandum
Under USERRA, Service members are not required to provide documentation to prove an absence was due to uniformed service, unless that service is more than 30 days and the documentation is requested by the employer. However, per Department of Defense Instruction 1205.12, the Military Departments are required to verify periods of uniformed service upon an employer's request, regardless of duration of the service-related absence. Employers may reach out to the employee's military chain of command to request this verification.
The type of information about a Service member's uniformed service that can be released to third parties is outlined in DoD 5400.11-R, Department of Defense Privacy Program, May 14, 2007. In section C188.8.131.52.2.. the following are described as routine use disclosures specific to military members (see DoD 5400.11-R for complete list):
C184.108.40.206.2.1.1. Full name.
C220.127.116.11.2.1.5. Past duty assignments.
C18.104.22.168.2.1.6. Present duty assignments.
C22.214.171.124.2.1.7. Future assignments that are officially established.
C126.96.36.199.2.1.13. Duty status at any given time.
To review DoD 5400.11-R, Department of Defense Privacy Program, click here.
For the most accurate information on a Service member’s status, employers should reach out to the employee’s military chain of command. If additional assistance is needed, please contact the ESGR Customer Service Center. ESGR does not have direct access to individuals' service records, but may be able to assist employers in finding a point of contact within an employee's military command to assist.