GSB Vol. 7, No. 4 - #1. PROTECTING AMERICA'S RESERVISTS: Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices.

• Author: By John F. Beasley Jr.

Georgia Bar Journal

Volume 7.

GSB Vol. 7, No. 4 - #1.

PROTECTING AMERICA'S RESERVISTS: Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices

Georgia State Bar JournalVol. 7, No. 4, February 2002"PROTECTING AMERICA'S RESERVISTS: Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices"By John F. Beasley Jr. Thousands of Americans serve the United States in the military and military reserves. As the tragic events of Sept. 11, 2001, continue to unfold, many reservists are being required to put their domestic lives and jobs on hold as they are called to active duty. Naturally, as their military service draws to a close, reservists seeking to re-enter the workforce will be questioning their legal rights and responsibilities. One of the many questions is: "How and under what circumstances can I be re-employed in my old job?" While both state and federal law provide for re-employment rights, it is federal law that offers the most expansive protection to reservists. What follows is a summary of the re-employment rights for reservists under the Georgia and federal statutes. Because federal law is the more beneficial to the returning employee and the more likely to form the basis of a lawsuit, it is the main focus of this article. GEORGIA STATE LAWS AND THE RETURNING RESERVIST As a general rule, the laws of Georgia, insofar as employees are concerned, are less advantageous than federal civil rights statutes, particularly given the absence of a fair employment practice act applicable to private sector employees. With regard to reservists and other military personnel, however, Georgia offers a more generous safe harbor, albeit one that is less favorable than its federal counterpart. Specifically, the rights of re-employment are outlined in two provisions that can be found in Article 3, Part 4 of Title 38, concerning military affairs. The first addresses the rights of public officers and employees absent due to service as members of the militia or reserve forces1 and the second specifies the rights to re-employment afforded to service men and women in private industry.2 With regard to public employees, defined as any person employed on a full-time basis with the state, a county, municipal corporation, or any other political subdivision or department,3 Georgia law provides for a leave of absence for: (a) "ordered military duty" (duty imposed without consent but also periods of 30 days imposed with consent); and (b) attendance at service schools (not to exceed six months in any four year period).4 During such leave, public employees are entitled to 18 days pay (30 days for governor declared emergencies) plus all benefits of pension or retirement systems with the exception of accidental disability retirement and accidental death benefits.5 Notably, these rights, including re-employment after service, are protected only to the extent that adverse employment actions are taken "by reason of such absence."6 The significance of this language lies in the fact that a court is likely to require that any such action be based solely on the military service, which can be a difficult hurdle for plaintiffs. An even greater concern for public employees, however, is that the statute provides no express remedial provisions associated with these rights. Private sector employees fare somewhat better under Georgia law. As with public employees, state law also provides for reemployment after military service or after not more than six months attendance at a service school conducted by the armed forces of the United States, provided that the person is still qualified to perform the duties of the position.7 As with public employees, however, these rights afford an opportunity of reinstatement for military personnel and reservists only where a discharge or suspension is "because of" their status.8 The point is that this language will not be viewed any different than the "by reason of" language quoted from the public employee statute. Accordingly, plaintiffs will likewise be required to show that any adverse employment action was taken solely on account of the military service. Should he or she prevail, the plaintiff will be entitled to full seniority but will only inure to those benefits that would otherwise be available to employees on furlough or leave of absence from work.9 The advantages Georgia law offers to private sector employees involve issues of benefits. Unlike public employees, private sector military personnel and reservists are afforded some statutorily defined remedial protection. For example, the statute provides some assurance against retaliation in the form of a prohibition against discharge without cause for a period of one year.10 It also affords a list of remedies that include back pay, the opportunity for representation by the State Attorney General's office, and a prohibition against assessment of fees and costs.11 Noticeably absent, however, is any right to recover fees and costs or any opportunity for the assessment of punitive or bad faith damages. In addition, the Georgia statute offers only a bench trial by petition to the superior court of the county in which the private employer resides.12 As a result of these limitations, the state's military personnel and reservists will necessarily look to federal law in search of increased protection. FEDERAL REMEDIES FOR RESERVISTS

Perhaps more advantageous than any Georgia law, at least insofar as the reservist is concerned, is federal protection provided by the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA" or the "Act").13 USERRA's stated purpose is to encourage noncareer service in the military, to minimize disruption in the lives of service men and women and their employers, and to prohibit discrimination.14 Specifically, Congress enacted USERRA in 1994 to provide "prompt reemployment," to those who engage in "noncareer service in the uniformed services."15 Prior to USERRA, military personnel had only the Veterans' Reemployment Rights Act ("VRRA") to assist them in addressing workplace discrimination. Unfortunately, however, this early legislation suffered from serious deficiencies. One such deficiency, the same one that currently hinders employment actions under Georgia state law, was that employee- reservists were only protected against discrimination, like discharge or demotion, to the extent that it was motivated solely by reserve status.16 In addition, the VRRA did not require employers to provide "special work-scheduling" accommodations to reservists.17 USERRA replaced the VRRA, to "clarify, simplify, and, where necessary, strengthen the existing veterans' employment and reemployment rights provisions."18 Consistent with that goal, Congress intended for the case law developed under the VRRA to aid in interpreting USERRA.19 Also, like the VRRA, USERRA is to be liberally construed in favor of those who served their country.20 Perhaps the most dramatic difference, however, is USERA's substitution of the "because of" language used in the VRRA for the more liberal "motivating factor" standard of proof.21 This, of course, avoids any requirement that adverse employment actions be solely based upon military service. Even so, the plaintiff will still bear the burden of proving that he or she is entitled to reemployment. 22 SPECIFIC PROVISIONS

Where absence from a position of employment is necessitated by reason of participation in the "uniformed services," USERRA allows for re-employment rights and benefits provided that: (1) the person has given advance written or verbal notice of such service to the employer; (2) the cumulative length of the absence and of all previous absences from military service does not exceed five years; and (3) the person reports to, or submits an application for re-employment to, the employer.23 Although...