USERRA Obligations: Navigating Uncharted Legal Waters

[2004] All rights reserved including the right of reproduction in whole or in part in any form.

In the past year our country has experienced the largest military call-up in over a decade. As military deployments end and service members return home, they and employers alike are confronted with questions that accompany these returns.

Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA), Chapter 43 of Title 38, U. S. Code, in October 1994. USERRA prohibits employment discrimination based on military service, articulates the rights, benefits and protections afforded to service members while on military leave and upon return from military leave, and governs the reemployment of service members upon completion of military service. USERRA also provides its own enforcement procedures to ensure compliance.

This paper offers an overview of USERRA with helpful tables to assist you in understanding USERRA. It should be noted that some states have enacted laws providing more generous treatment to service members than are mandated under USERRA.

Understanding USERRA - Background

Since the Veteran's Reemployment Rights Act (VRR) was replaced by USERRA few courts have decided cases using USERRA. USERRA case decisions seem to be commonly relying on VRR rulings and legislative intent. There are, however, some cases that help navigate USERRA's uncharted legal waters. Lapine v. Wellesley, 304 F.3d 90 (1st Cir. 2002) offers an analysis of legislative intent and Rogers v. City of San Antonio, Texas, 211 F.Supp.2d 829 (W.D. Tex. 2002) reviews VRR case history and current application of USERRA.

Using an abundance of caution, the court in Rogers, supra on March 24, 2003 issued an Order Granting Motion for Certification Under 28 U.S.C. 1292(b), 2003 WL 1571550 (W.D. Tex.) allowing the parties to appeal two specific items to the Fifth Circuit Court of Appeals, before proceeding further. On May 2, 2003, the Petition for Permission to Appeal was filed, and then granted on May 27, 2003. All briefs have been recently filed and this case is currently under consideration by the court. As of the printing of this paper the application of USERRA by the courts seems to remain unclear.

Employee - Service Members

The terms of USERRA are broad, applying to anyone in the uniformed services whether voluntary or involuntary who was employed in any non-temporary position even for only one day prior to being called up.

"Service" in the uniformed services is defined as the performance of duty on a voluntary or involuntary basis in a uniformed service, including active duty, active duty for training, initial active duty for training, inactive duty for training, full-time National Guard duty, absence from work for an examination to determine an individual's fitness for any of the named types of duty, funeral honors duty performed by National Guard or reserve members, duty performed by intermittent disaster response personnel for the Public Health Service, and approved training to prepare for such service.

"Uniformed services" consist of the United States Army, Navy, Marine Corps, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve, Army National Guard, Air National Guard, commissioned corps of the Public Health Service and any other category of persons designated by the President in time of war or national emergency. Part time, full time and probationary employees are protected under USERRA.

Employers - Public & Private

USERRA applies to all public and private employers, and their successors, regardless of size or location in the world.

Invoking Protected Rights Procedures by Service Member

A service member is entitled to rights furnished by USERRA provided that the service member meets the criteria outlined in Table 1.

Table No. 1

A service member is entitled to rights furnished by USERRA provided that the service member meets the following criteria:

1)

The service member held a civilian job with the employer; and

2)

The service member provided advance notice to the employer that the service member was leaving the job for service in the uniformed services; and

3)

The service member's period of service has not exceeded a cumulative service period in excess of five years, unless extended by operational directive; and

4)

The service member was released from service under honorable conditions; and

5)

The service member timely reported back to work or submitted a timely application for reemployment.

Advance Notice to the Employer

The service member or an appropriate military officer must provide advance written or verbal notice to the employer of all military duty, unless giving notice is impossible, unreasonable, or precluded by military necessity. The law requires "advance" notice, but does not specifically address how far in advance notice must be given.

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