Every year some 180,000 individuals enlist in the armed services, and another 20,000 seek commissions as officers. Typically, many of these individuals will not immediately leave for active duty but will instead be admitted into the Delayed Entry Program (a/k/a “Delayed Enlistment Program,” “Delayed Training Program,” or “Future Soldier Program”) (“DEP”) for up to 365 days while they wait to report for basic training or military school. The Marine Corps refers to these individuals as “Poolees.” While these Poolees await their orders to report to basic training, they may choose to remain employed as civilians until they report for training. In those circumstances, to what extent are their civilian jobs protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA)?
USERRA Issues Impacting Civilian Employment of DEP Poolees:
Examination to Determine Fitness: The enlistment process typically begins when the future servicemember reaches out to a recruiter and expresses an interest in enlisting. The recruiter will then begin the process to determine the individual’s qualifications for initial enlistment. This will involve gathering, examining and confirming documentation, preliminary testing of mental and physical suitability, and background checks.
If prior to this process the individual provided the necessary notice to his employer that he is leaving for the purpose of “serving,” i.e. enlisting, in the uniformed services, his position is protected by USERRA—“uniformed service” specifically includes leaving employment for the “purpose of an examination to determine his or her fitness to perform duty in the uniformed services.” If the employee’s attempt to enlist is unsuccessful, he must be reemployed provided he satisfies the other requirements for USERRA protections.
“Ready Reserves” While in the DEP: If the employee chooses to take the next step, she will typically enlist in the Delayed Entry Program (DEP) by signing a DD Form 4/1. Once executed, the individual is considered a member of the Ready Reserves of the component she has chosen until ordered to report to active duty—up to 365 days later. Although some Poolees may use the DEP to complete school before reporting to basic training, some may have civilian employment during this period while they await orders. The life of a Poolee is not merely waiting around until they board the flight to boot camp. Instead, most services will have regular activities organized for their newly-enlisted servicemembers to improve physical fitness performance, learn military fundamentals, such as military etiquette and history, rank structure and chain of command, and other military matters to prepare them for their military service. To perform these functions, Poolees are under orders to attend necessary meetings, classes, and training, just as if they were in the active duty military.
If a Poolee has civilian employment while on the DEP, what protections are available when she is ordered to report for these events? Simply put, as a member of the Ready Reserves, a Poolee has all the rights and obligations as any other servicemember in the Active Reserves, provided she meets the requirements for USERRA protection. Thus, as it relates to Poolees, the leave of absence must be for the purpose of performing uniformed service, as determined by her recruiter; she must provide prior written or verbal notice to her employer; and she must report back to work within the deadlines set forth in the Act. Provided these requirements are met, the employer must allow the Poolee time off to attend DEP events and reemploy her once they are completed. Furthermore, the employer may not discriminate against her based upon her military service, and must not retaliate against her for demanding her USERRA reemployment rights.
If Discharged, What USERRA Rights are Available to a Poolee? Sometimes Poolees choose not to continue in the DEP or to enter active duty to attend basic training. The Department of Defense and the various services have adopted a position that while servicemembers are enlisted in the DEP they should have the option of changing their mind and withdrawing from the program with no adverse consequences. Thus, Poolees are typically permitted to seek discharge during their DEP enlistment as an “Entry Level Separation” (ELS), which is considered an uncharacterized separation and does not preclude USERRA reemployment rights following discharge.
A Reminder of USERRA Reemployment Rights: Employers should be aware that their pre-enlistment employees may seek reemployment after their initial enlistment on active duty, which may last 2-5 years (or longer, given certain exceptions in the Act). Provided that the servicemember meets all five requirements for USERRA reemployment protection, an employer is required to reemploy the servicemember. Similarly, recent enlistees should preserve their rights to reemployment after active duty by ensuring compliance with USERRA before they depart for active duty. Please consult ESGR or a qualified attorney to determine whether reemployment is required in any particular situation.
When an employee gives notice that he is leaving to enlist in the military, an employer must understand its obligations, both during the employee’s period prior to basic training and after active duty. If this post has not answered your questions, or you have other questions regarding USERRA rights, please contact me directly via email, request assistance at www.ESGR.mil, or contact your local DOL-VETS representative. We have resources for both servicemembers and their civilian employers.
Mathew M. Meyer, Esq., Cornell Law ’95, is a business law, regulation, and commercial litigation attorney in the Twin Cities area. A Marine Veteran, Mr. Meyer is a long-time volunteer and mediator with the Department of Defense ESGR program. He is the Minnesota ESGR Assistant Ombudsman Director and Military Liaison to local Marine and Navy Reserve units, and frequently advises servicemembers and employers regarding USERRA legal issues. All opinions, comments, and analysis are his alone, and do not reflect those of the Department of Defense, the ESGR program, or any other organization.