Is laid-off employee entitled to reemployment even though he was removed from recall list while on active duty?
Issue:

Carlton was on layoff status with your company when he entered the armed services. He was still on active duty when he was removed from a recall eligibility list. His department manager decided to remove Carlton from the eligibility list after he failed to respond to a letter notifying him of job opportunities. Carlton has returned from active duty and seeks reemployment. Despite knowing that Carlton was on active duty at the time he was removed from the eligibility list, the department manager continues to refuse to reemploy him. Is Carlton entitled to reemployment?
Answer:    

Yes. Because Carlton was honorably discharged from military duty and made a request for reemployment, he is entitled to reemployment in his former position. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to keep a service member on a reemployment eligibility list for the period he would have been entitled to remain on that list had he not been called to military service.

So, despite being on layoff status on the date of the call up for military service, a service member would still be “in the employ” of the employer. Thus, the service member’s employment right to the remaining days of eligibility for recall must be maintained.

Source: CCH: When Duty Calls: Military Leave and Veterans’ Rights.
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