53 RI Bar J., No. 4, Pg. 17 (January/February 2005). Reviewing The Uniformed Services Employment and Re-employment Rights Act.

• Author: Paul A. Brule, Esq.

Rhode Island Bar Journal

Volume 53.

53 RI Bar J., No. 4, Pg. 17 (January/February 2005).

Reviewing The Uniformed Services Employment and Re-employment Rights Act

January/February 2005 pg. 17

Reviewing The Uniformed Services Employment and Re-employment Rights ActPaul A. Brule, Esq.Paul A. Brule is a principal with the law firm of Walsh, Brule & Associates, Attorneys P.C., and a member of the graduate faculty in the Providence College Masters of Business Administration Program. Attorney Brule has also received advanced training as a volunteer ombudsman Employer Support of the Guard and Reserve (ESGR). ESGR is an agency within the office of the Assistant Secretary of Defense for Reserve Affairs.

Introduction:

Approximately one half of the military personnel of the United States are members of the National Guard or Reserve forces. Over the last two years, these citizen-soldiers have been deployed in numbers not seen since World War II. As of early 2004, approximately fifty percent of our armed forces personnel in Iraq are Reservists or National Guard. Of course, as more Reservists and National Guard are deployed, more employers see their employees leaving work for extended periods of time and then returning, with the intentions of resuming their position within the company. This situation is compounded by fact that these recent deployments have been for terms of twelve to eighteen months or more, during which time the employer may need to hire a replacement to perform the job duties of the employee who was called to duty. These citizen-soldiers have federally and state protected rights regarding employment and, more importantly, similar re-employment rights after the performance of military duty. Given the large numbers of Reservists and National Guard members who will be returning from military duty, an understanding of these rights is of significant importance.

This article reviews Title 38 Chapter 43 of the United States Code, known as the Uniformed Services Employment and Re-employment Rights Act, hereafter referred to as USERRA, or "the statute." Included is a review of the history and purpose of USERRA and the five conditions that must be met before USERRA will provide re-employment rights to the returning soldiers and sailors. This is followed by a review the specific rights regarding re-employment and concludes with a discussion of burden of proof and related matters. Though there are state specific rights similar to those contained in USERRA, I will leave those for another day.

History & Applicability

USERRA was enacted October 13, 1994 and can be found at Title 38 of the U.S. Code Chapter 43, Sections 4301 through 4333, Public Law 103-353. The statute was an update to previous law dating back to 1940. The statute was also updated in 1996, 1998 and 2000. USERRA secures re-employment rights of all those who have served in uniform. The list of uniformed services covered by the Act includes, in addition to the traditional Army, Navy, Marine Corps, Air Force or Coast Guard, all of the Reserves or National Guard forces as well as the Commissioned Corps of the Public Health Service. (fn1) The law applies to employers of all sizes. In fact, even the Federal Government is subject to the provisions of USERRA. (fn2) At the risk of being redundant, there are no exceptions for small employers. The Act also protects part time positions, though there is an affirmative defense where the employer can show that the employment is for a brief, non-recurring period and is not expected to last indefinitely or for a significant period of time. (fn3) USERRA does not protect independent contractors or other self-employed individuals. The statute also does not apply to activations of the National Guard by the various States pursuant to State law, and is therefore limited to federally authorized deployments. However, certain State rights arise as a result of State mandated deployments.

Purposes & Conditions Imposed by the Statute

Briefly stated, the purpose of USERRA is to prohibit discrimination and retaliation against non-career service members in the civilian workplace and to provide for prompt re-employment of such persons, upon completion of their service obligations and return to their civilian employers. (fn4) To that end, USERRA prohibits discrimination in the hiring of individuals who have obligations to the uniformed service, most specifically the various Armed Forces Reservists and National Guard. (fn5) Beyond prohibiting this discrimination in hiring, the thrust of the statute is to provide re-employment rights following the performance of military service. USERRA is designed to allow Reservists and National Guard to fulfill their commitments without fear of workplace reprisal, by providing broad re-employment rights for the employee upon returning to the work. However, in order to be eligible for the protections of USERRA, the service member must have complied with five general conditions before to returning to work. In summary these conditions are as follows:

1. The service member must have left a civilian employment;

2. The service member must have given notice to their employer that they were leaving to perform military service;

3. The cumulative period of time the service member has devoted to the military must not have exceeded five years (subject to various exceptions);

4. The service member must have been released from the period of service without having received a punitive or other than honorable discharge; and

5. The service member must have reported back to work or applied for re-employment within the time periods described in the law (determined by the length of deployment).

We will look more closely at the three most troublesome of these conditions.

Notice: The service member is required to provide notice to the employer of impending military service. (fn6) However, the notice requirements...