Final Paycheck Laws by State After Employee Termination
When an employee is terminated, state laws determine how quickly they must receive their final paycheck and if PTO must be paid out. See the laws...
Who Has Job Protection Status Under USERRA?
If an employee says they have military training or plan to be an ICE agent soon, do you have to reserve a position for them upon their return?
Natalie Soltero, SHRM-CP, Stratus HR Consultant
Sep 29, 2025
When an employee tells you they are being called up for military service or training or are considering leaving your company to be an Immigration and Customs Enforcement (ICE) agent, you may wonder what your obligations are as an employer. Do you have to hold their job? Are they protected under federal law? Is this similar to a member of the military reserves going off for training?
The answer is not always intuitive. This article will clarify your responsibilities as a business owner or employer when an employee seeks to become a federal law enforcement agent, specifically whether the Uniformed Services Employment and Reemployment Rights Act (USERRA) applies in this situation.
USERRA: Strong Employment and Reemployment Rights Protections, but Only for the Uniformed Services
USERRA is a federal law that protects employees who temporarily leave their civilian jobs to perform service in the uniformed services. The purpose of the law is to ensure that service members are not disadvantaged in their civilian careers because of their military duties. USERRA covers service in the uniformed services performed on a voluntary or involuntary basis.
Under USERRA, employees have reemployment rights after completing qualifying military service. This includes:
- Making reasonable efforts to return them to their prior job (or a comparable one) in a timely manner;
- Maintaining seniority and benefits as if they had remained continuously employed; and
- Protecting them from discrimination based on active duty for military service.
USERRA prohibits employment discrimination, including denying initial employment, based on an individual's military obligations.
To have reasonable expectation of USERRA job protection rights, employees must give advance notice to their pre-service employer (the employer who originally hired them) before leaving for his or her military service, whenever possible. Once their obligated service dates expire, employees must return to their previous job on their regularly scheduled work period.
However, because not all public service counts as “uniformed service” under USERRA, employers can easily be confused.
Which Service Members Have Job Protection Status Under USERRA?
Employees who serve in the following roles are covered under USERRA:
- U.S. Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard)
- Reserve components of the above services
- National Guard members (Army and Air)
- Commissioned Corps of the Public Health Service
- Participants in certain roles within the National Disaster Medical System
USERRA protections apply to all uniformed services members, including both past and present members of the U.S. military.
Please keep in mind, these are all military or military-adjacent services, not civilian federal agencies.
ICE Agents Are Not Considered Members of the Uniformed Services
Immigration and Customs Enforcement (ICE) is a civilian federal law enforcement agency under the Department of Homeland Security (DHS). ICE agents, even though they undergo rigorous training and serve national security functions, are considered civilian employees of the federal government, not military service members. As such, ICE agents are engaged in civilian employment, which is not covered by USERRA.
This means that a person who leaves their civilian job to attend ICE’s law enforcement training academy is not engaging in military service. Therefore, they are not covered by USERRA protections.
How an Employee Leaving to Be an ICE Agent Affects You as an Employer
If an employee informs you they are leaving to join ICE and will be attending the training academy, here’s what you need to know: The employee is not leaving to perform military service, so USERRA protections do not apply in this situation.
-
This Is a Voluntary Civilian Career Move
Your employee is voluntarily resigning to pursue a new civilian job. This is functionally no different than an employee leaving to become a police officer, join the FBI, or take a job in another company.
You are not obligated to hold their position open.
-
No USERRA Protection Applies
Because ICE is not part of the uniformed services, USERRA does not apply. The employee has no legal right to reinstatement after training or to continued employment benefits during their absence.
-
No Legal Obligation to Rehire
You are not legally required to rehire or reserve a position for the employee if they complete ICE training and later decide they’d like to return. Any such reemployment would be strictly at your discretion or per your company’s voluntary policies.
-
Employment Discrimination Still Isn’t Permitted
While you’re under no obligation to hold the job, you cannot discriminate against the employee for their desire to pursue public service. For example, you cannot treat them unfairly, retaliate, or deny benefits solely because they expressed an interest in federal law enforcement.
Health Insurance Protection: What Happens to Benefits?
When an employee leaves for military service, their health insurance protection is a critical concern for both the service member and the employer.
Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), service members performing duty in the uniformed services (including the Armed Forces, National Guard, Reserve components, and the Commissioned Corps of the Public Health Service) are entitled to continued health insurance coverage during their period of service. However, those leaving to be an ICE agent do not qualify for continued health insurance.
Review Your Company Policies
Even though the law doesn’t require you to keep the job open, some employers choose to implement leave policies for employees pursuing public service, law enforcement, or federal service opportunities.
If your company provides different types of leave, such as public service leave, volunteer leave, sabbatical, bereavement, parental, and so on, you should ensure that employees are given equal treatment to those on comparable types of leave.
Questions to Ask Yourself:
- Do you have a formal leave of absence policy?
- Is public service included under any kind of extended leave?
- Have you had similar situations before (e.g., employees leaving for the police academy or other government roles)?
If you do allow job-protected leave for non-military public service, it’s essential to apply those policies consistently to avoid potential claims of favoritism or discrimination.
Communication Is Key
In situations like this, it’s critical to have an open and respectful conversation with the employee. You can explain the company’s policy, acknowledge their career goals, and clarify that their departure will be treated as a voluntary resignation. You might even offer to stay in touch, should they wish to return later and a position is available.
Sample language to use might include:
“We support your decision to pursue a new career in federal law enforcement and wish you the best. As this move is not covered by military leave protections, your departure will be processed as a voluntary resignation. If you’re ever interested in returning in the future, we’d be happy to consider your application.”
Stay Up-to-Date
Employment laws, especially those involving military service and public service, can change over time. As of this writing, USERRA does not cover civilian federal law enforcement careers like ICE. But it’s smart to check with an employment attorney or consult the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) for updates.
You can also find state-specific resources through your state’s Department of Labor or Veterans Affairs office, which may have additional recommendations or policies that apply locally.
Summary for Employers Regarding USERRA Rights
Scenario |
Your Obligation |
Employee leaves for military training |
Covered by USERRA; must reemploy after military service training |
Employee joins ICE or another federal agency |
Not covered; no obligation to rehire |
Employee requests unpaid leave for ICE training |
Discretionary; depends on company policy |
Employee claims discrimination for joining ICE |
Illegal if based on bias; however, no claim if simply based on refusing to hold their job and decision is consistent |
Note: As an employer, you should always ensure that similarly situated employees are treated consistently regarding leave and reemployment policies. This means employees on leave should receive the same rights and benefits as other employees in comparable positions who are not on leave, in compliance with laws such as USERRA.
Bottom Line
An employee choosing to become an ICE agent does not trigger any special job protections under USERRA. For employers, this is treated like any other civilian resignation. You have the discretion to allow unpaid leave or to rehire them in the future, but there is no legal requirement to hold their job or restore their position after training or service.
As always, maintaining clear policies and consistent practices will protect your business and show employees you operate with fairness and transparency, even when saying goodbye.
If you have specific questions about USERRA compliance or want to build a stronger public service leave policy to give your employees the most favorable treatment, contact your certified HR expert or employment attorney. Not a current Stratus HR client? Book a free consultation and our team will contact you shortly.
Sources: