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Does employee on leave for ROTC Field Training receive job protection under USERRA or otherwise?
Part time employee (works weekends only) requested unpaid leave from work since he is being directed to report for AFROTC (Air Force Reserve Officer Training Corp) Field Training for 4 weeks. As I understand, military reservists are generally protected under USERRA. But the AFROTC Field Training takes place in the sophomore year of college, so it would not seem that the employee is a reservist now. Does this AFROTC Field Training directive entitle the employee to unpaid leave just as a reservist who is called up, or should the employee be resigning to participate in the Field Training? Thank you.
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1 Answer
§ 1002.61 of the statute contains the following...
Possibly...some Reserve and National Guard enlisted members use a college ROTC program as a means of qualifying for commissioned officer status. National Guard and Reserve members in an ROTC program may at times, while participating in that program, be receiving active duty and inactive duty training service credit with their unit. In these cases, participating in ROTC training sessions is considered ‘‘service in the uniformed services,’’ and qualifies a person for protection under USERRA’s reemployment and anti-discrimination provisions.
Otherwise Typically, an individual in a College ROTC program enters into an agreement with a particular military service that obligates such individual to either complete the ROTC program and accept a commission or, in case he or she does not successfully complete the ROTC program, to serve as an enlisted member. Although an individual does not qualify for reemployment protection, except as specified above, he or she is protected under USERRA's anti-discrimination provisions because, as a result of the agreement, he or she has applied to become a member of the uniformed services and has incurred an obligation to perform future service.
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