GPSolo Magazine - January February 2005

USERRA: When It’s Over Over There, Gi Joe Gets His Job Back

Our generation’s “date which will live in infamy” is September 11, 2001. Since that horrific day, more than 430,000 National Guard and Reserve personnel have been called to active duty for Operation Noble Eagle, Operation Enduring Freedom, Operation Iraqi Freedom, and other operations. Thanks to the Selective Training and Service Act (STSA) of 1940, and its 1994 revision, the Uniformed Services Employment and Reemployment Rights Act (USERRA), those men and women have the legal right to reemployment in the civilian jobs that they left to serve our nation. For seniority and pension purposes, they must be treated as if they had been continuously employed.

The genesis the STSA and USERRA was in the Great Depression. In 1932, thousands of unemployed veterans of World War I marched on Washington, demanding assistance from the government. General Douglas MacArthur, then U.S. Army Chief of Staff, led Army troops, with fixed bayonets, chasing the veterans out of Washington because Congress and the administration were unwilling to meet their demands.

World War II broke out in Europe just seven years later, in September 1939, when Hitler’s Germany invaded Poland. Although the United States did not get fully involved until two years later, it was clear that our nation needed to beef up its tiny military establishment.

In September 1940 Congress enacted the Selective Training and Service Act (STSA), our nation’s first peacetime conscription law. The 1932 veterans’ march on Washington was fresh in the minds of senators and representatives, and they were intent that never again would a person be unemployed because of service in our armed forces. Congress therefore included the right to reemployment in the STSA, binding on the federal government as well as private employers. In September 1941, Congress enacted the Service Extension Act, making conscription authority permanent and extending the right to reemployment to include voluntary enlistees as well as draftees. Congress made the right to reemployment applicable to state and local governments in 1973.

Contrary to popular misconception, the reemployment statute has accorded rights to volunteers as well as draftees almost from its inception. Congress ended the draft in 1973, but the reemployment statute continued. The right to reemployment is part of the incentive package that Congress enacted to encourage young men and women to volunteer for our nation’s armed forces, including the Reserve components. Since August 1990, when President George W. H. Bush called up the Reserve Components to respond to the Iraqi invasion of Kuwait, the reemployment statute has been most frequently discussed in connection with the National Guard and Reserve, but it applies to active component military personnel as well.

In 1994 Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA), a complete rewrite of the much-amended 1940 reemployment statute. Don’t think of this law as being 11 years old—think of it as being 65 years old. USERRA is codified at 38 U.S.C. 4301-4333.

In its first case applying the STSA, the Supreme Court held that this law should be “liberally construed for the benefit of he who has laid aside his civilian pursuits to serve his country in its hour of need.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946). Of course, the Court was referring to the members of our nation’s “greatest generation,” who had just won World War II. I respectfully suggest that the same principle of “liberal construction” applies to the baby boomers and the members of Generation X and Generation Y serving today.

Under USERRA, a person is entitled to reemployment if he or she meets four straightforward eligibility criteria. First, he or she must have left a civilian job for the purpose of performing voluntary or involuntary service in the uniformed services and must have given advance notice to the employer. The uniformed services are the U.S. Army, the U.S. Navy, the U.S. Marine Corps, the U.S. Air Force, the U.S. Coast Guard, and the U.S. Public Health Service. Under separate legislation enacted in 2002, intermittent disaster response appointees of the National Disaster Medical System (part of the Department of Homeland Security) also have reemployment rights under USERRA.

Second, the person’s cumulative period or periods of service, relating to that particular civilian employment relationship, must not exceed five years. All involuntary service and some voluntary service are exempted in computing the five-year limit. Third, the person must be released from the period of service under honorable conditions. Fourth, the person must make a timely application for reemployment.

A person who meets these criteria is entitled to prompt reinstatement (generally within two weeks after application). For seniority purposes, the person must be treated as if he or she had been continuously employed. The person is also entitled to civilian pension credit as if continuously employed. And the person is entitled to reinstatement of health insurance through the civilian job.

Today, thousands of veterans are returning with serious service-connected disabilities. In this situation, the pre-service employer is required to make “reasonable accommodations” to enable disabled veteran to do the job despite the disability. If the disability cannot be reasonably accommodated in the pre-service position, the pre-service employer must reemploy the returning disabled veteran in another position that provides like seniority, status, and pay, or the closest approximation thereof consistent with the returning disabled veteran’s circumstances. Under the Americans with Disabilities Act, employers are required to make reasonable accommodations for disabled persons generally, including but not limited to disabled veterans.

Enforcement of USERRA is by a civil action filed in the appropriate United States District Court, by the Attorney General of the United States, or by private counsel that the plaintiff retains. If the complaint is filed against a federal executive agency, the case is brought in the Merit Systems Protection Board (MSPB) by the Office of Special Counsel or by private counsel. If the plaintiff proceeds with private counsel and prevails, the court or the MSPB may award reasonable attorney fees, expert witness fees, and litigation expenses. See 38 U.S.C. 4323(h)(2), 4324(c)(4). If the case is against a state, as an employer, the Attorney General must file the suit, and the United States will be the named plaintiff.

Section 4331(a) of USERRA, 38 U.S.C. 4331(a), gives the Secretary of Labor the authority to promulgate regulations concerning the application of USERRA to state and local governments and private employers. On September 20, 2004, the Department of Labor published its proposed USERRA regulations in the Federal Register (vol. 69, no. 181, pages 56,266 to 56,301). The 60-day notice and comment period expired on November 19, 2004. It is anticipated that the proposed regulations will be finalized soon.

Reserve Officers Association’s Law Review
In 1997 the Reserve Officers Association (ROA) originated a “Law Review” column in The Officer, the monthly magazine of the Reserve Officers Association. You can find the back issues on ROA’s website, www.roa.org. Click on “Legislative Affairs,” then “ROA Law Reviews.” You will find more than 150 articles, mostly about reemployment rights. You will also find a topical index and a numerical index. For a comprehensive review of the history of the reemployment statute, please read “Law Review” number 104.

National Committee for Employer Support of the Guard and Reserve (ESGR)
In the Department of Defense, there is an organization called the National Committee for Employer Support of the Guard and Reserve (ESGR). ESGR’s mission is to gain and maintain the support of civilian employers for the men and women of the National Guard and Reserve, as evidenced by demonstrated employer commitment to employee military service. ESGR gives awards to employers who go “above and beyond” USERRA’s requirements with regard to those who serve. ESGR has about 750 volunteer ombudsmen in 55 state and territorial committees located in the states, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and Europe. ESGR has a toll-free number (800/336-4590) and a website ( www.esgr.com).

Samuel F. Wright is a captain in the Naval Reserve Judge Advocate General’s Corps. He can be reached at samwright50@yahoo.com. The views expressed in this article are his own, and not necessarily the views of the Department of the Navy, the Department of Defense, or the U.S. government. This article was originally published as Law Review No. 152 in The Officer magazine, December 2004, a publication of the Reserve Officers Association of the United States. Reprinted with permission.

 

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