Did service member have to provide return-to-work date?

“It’s unfortunate that Roger was away on military duty when we terminated him,” said Supervisor Margie Brunton. “However, we had to make a decision because he was nearing the end of his 90-day probationary period and he wasn’t performing up to our expectations.”

“Roger doesn’t think his performance had anything to do with his dismissal,” said HR Manager Alan Frankel. “He says he was let go in retaliation for taking military leave. He’s suing us under USERRA, the Uniformed Services Employment and Reemployment Rights Act.”

“That’s rich,” said Margie. “Does Roger have any evidence to prove he was fired because of his military-service obligations?”

“According to Roger,” said Alan, “the decision to let him go was made the day after he told his supervisor he was taking two weeks of military leave. He says his boss sent an email to the HR department stating that Roger ‘wasn’t going to work out.’”

“Yes, but Roger wasn’t fired at that time,” said Margie. “He was let go a few weeks later after he told his supervisor that he’d suffered an injury while he was out on military duty and that he wouldn’t be able to come back to the workplace right away. Without a solid return-to-work date, we weren’t obligated to reemploy him.”

“Roger claims that we needed to protect his job until he recovered from his injury,” said Alan.

“That’s not true,” said Margie. “Unless and until he could give us a return date, we didn’t have to reemploy him. We should challenge this lawsuit.”

Did the company win?

No. The employer lost. The court refused to dismiss the lawsuit. The most damning evidence against the organization was the email sent to the HR department by the man’s supervisor the day after the worker had begun his military leave. In the email, the supervisor said the service member wasn’t “going to work out.” The close timing between the start of the employee’s military service and the supervisor’s email – one day – was strong evidence of retaliation, ruled the court.

And the employer’s argument that the staffer failed to report back to work at the end of his military service fell on deaf ears. Reason: The employee was hurt while he was on military duty so he couldn’t have provided a solid return-to-work date until he’d recovered from his injury. In the meantime, the employer was legally required to give him time to recuperate.

What it means: Return date not always known

When it comes to managing crew members who are out on military duty, flexibility is key. You have to give the individual as much time as needed to finish his or her military service. Otherwise, you risk a costly lawsuit.

And service members aren’t typically required to provide a solid return-to-work date if something that could change their plans happens while they’re on military duty, e.g., a severe injury.

Based on Wamsley v. Bedford County.

(From the May 8, 2026, issue of HR Manager’s Legal Alert for Supervisors. To start your no-obligation trial subscription to the publication right now, please click here.)