Called to Duty? Advice for Your Clients
Brian Clauss, a licensed attorney, is an arbitrator and mediator of labor and employment disputes from Park Ridge, Illinois.
The Army National Guard and Reserve have been vital contributors to national security both at home and abroad. Reliance upon these citizen-soldiers has only increased since September 11, 2001, as has the need for their civilian employers to understand their obligations under federal law. Not knowing the law about the rights of service members could cause your clients, whether the employer or the employee, unnecessary headaches.
What Could Happen: A Typical Scenario
Ruth, a reservist and manager of a retail store, was ordered to active duty in April 2004 and deployed to Afghanistan. Ruth received short notice of her orders and thus was only able to give her employer short notice. She provided written notice to the employer that she was being called to active military duty for a term of more than one year. During her absence, the company hired a replacement manager. Ruth returned from Afghanistan in August 2006 and appeared in person and tendered written notice that she wanted her job back. Ken, the manager hired to replace her, stated that he would look into the matter and contact her in a few days.
How do you advise either Ruth or the company?
Obviously, preventing employment litigation based upon military discrimination is the wisest route for both the employer and the employee. Accordingly, your clients should be familiar with the Uniformed Services Employ-ment and Reemployment Rights Act (USERRA), enacted in 1994 to provide a comprehensive framework for the rights and obligations of the employer and the employed military member.
Some of the key provisions of USERRA:
• Prohibition of discrimination in employment and reemployment against National Guard and Reserve members because of their military service.
• Up to five cumulative year leaves of absence from civilian employment for the period of voluntary or involuntary military service;
• Continuation of seniority during period of service, including pension credit;
• Prompt reinstatement to civilian employment upon return from military duty without loss of seniority, status or pay rate;
• No termination for first year of return other than for just cause; and
• Resolution of employment issues through enforcement by the U.S. Department of Labor.
USERRA provides that when the men and women of the Guard and Reserve are called to active duty, their jobs must be held for them. When they return from deployment, they must be promptly returned to their civilian employment—to the position they held prior to their departure.
The Employer Support of the Guard and Reserve (ESGR) program was established to assist the employer and employees in understanding the USERRA law and to quickly resolve disputes related to military service between employers and employees. ESGR has a local committee in every state and territory and is a resource for both the employer and employees. The mission of ESGR is twofold: education and alternative dispute resolution.
Education: ESGR provides at no cost speakers and presentations to interested groups (including employers, labor unions, bar associations, civic or trade organizations, and other interested groups). These presentations are designed to give a comprehensive overview of USERRA and address the common problem areas. There are also a number of useful training materials on the USERRA statute available for no cost either through the local ESGR Committee or through a download on the Web site at www.esgr.mil
ADR: ESGR has an Ombudsman Program that is designed to quickly resolve employment-related complaints by service members and to keep employers from litigating against the U.S. Department of Labor. These neutral ombudsmen investigate employment-related complaints by service members and recommend appropriate resolutions to the parties based on the requirements of the USERRA law. The ombudsmen are trained mediators and can also assist in resolving disputes through informal mediation.
With the increase of military personnel returning from active duty, employment-related issues are on the rise. The USERRA statutes and regulations recognize the sacrifice of the men and women of the Guard and Reserve and ensure that service members need not worry whether a job will be there when they return.
The ABA has several resources and substantive areas of information for military lawyers and those who represent them. Standing Committee on Legal Assistance for Military Personnel (LAMP): www.abanet.org/legalservices/lamp/home.html
Government and Public Sector Lawyers Division, Military Lawyers Conference: www.abanet.org/govpub/military.html
General Practice, Solo and Small Firm Division, Military Law Committee: www.abanet.org/genpractice/military
Military Law, GPSolo magazine (January/February 2005). PC # 51501002201. Order online at www.ababooks.org