Protecting America's Reservists: Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices
Citation | Vol. 7 No. 4 Pg. 0001 |
Pages | 0001 |
Publication year | 2002 |
GSB Vol. 7, No. 4, Pg. 1. PROTECTING AMERICA'S RESERVISTS: Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices
Georgia State Bar Journal
Vol. 7, No. 4, February 2002
Vol. 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 the focus is on
"re-employment," USERRA also includes the right to
initial employment, retention, promotion, and benefits, which
includes "profit" (consider such things as
retirement and profit sharing plans, including stock),
pension and health benefits, vacations, and seniority work...
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