When Johnny (Jaanny) Comes Marching Home Job Security for the Returning Service Member Under the Veterans' Reemployment Rights Act
| Author | By Major Bernard P. Ingold- and Captain W. Lynn Dunlap |
| Pages | 08 |
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INTRODUCTION
The activation of reserve and Kiationai Guard umts durmg Operations Desert Shield and Desert Storm caused thousands of men and women to leave established civilian employment to serve their country. While the call to a c t i ~ duty entailed personal hardships and some economic losses that cannot he restored, these sewice memben will not have to worry about returning to the jobs they ieft behind, thanks to the Veterans' Reemployment Rights Act (VRRA):
The VRRA enacted originally m 1940 as pari of the Inirersal Military Training and Service and most re~ently amended in1991,' provides job protection for reservists and National Guard members who leave full-time ernplo)ment to enter active duty. The legislation also preserves the Jab rights of reservists and members of the National Guard w-ho enter active dut! to perform mactiie dutr for training and active duty for training In addition to mandating reemployment the \-RRA contains prans~ans designed to ensure that veterans do not lose important job rights. benefits. and prnllegea b) servmg ~n the armed forces
This article examines the scope and application oi th? \RRA and the crireria that must be mer to qualif) far reemployment rights. It sill describe the Act's major benefits, including protection from discharge hithour cause upon rerum to employment, preservation of statu and seniorit!. and the prohibition against discnmmatmg againsr employees who hale military obligations The article \
The VRR.4 s e ~ s out separate criteria and job protecrions for those
who volunteer ior or are inducted into the armed forces those n ha
19911 VETERANS' REE\lPLOYME?IT RIGHTS
leave employment to perform inactive duty for training and active duty for and those who enter active duty pursuant to presidential call up.' Although this article will discuss these differing criteria, the reader must recogmze that statu of the individual greatly affects job benefits and employer obligations
The reader also should be aware that various proposals to rnodlfy the VRRA recently have been lntroduced into Congreis. One proposal submitted by the Department of Labor. entitled the Urnform Services Emplogment Rights Act of 1991, may completely re\-amp the present statutory framework.8
11. SCOPE OF THE VRRA
The primavpurpose of the VRRA is topreserve forveterans. upon their return from service. the employment status they occupied prior to entering active duty Congress intended that persons called to serve in the armed forces should resume their former positions without loss of employment. job status. or work pnwleges. By providing a one-year penod durmg which a vetelan cannot be discharged without cause, the 4ct further protects the veteran from arbitrary dismissal.
The Supreme Court has stated that the rights promded under the 4ct are 'to be liberally construed for the benefit of those who serve thpir country''g Virtually all lower courts haTe agreed and apply the Act to benefit the veteran. Only one very early reponed case involving the VRRA expressed the view that, because the Act was in derogation of common law. it should be construed strictig10
The VRRA applies to all federal, state, and local governments, and to all private employers regardless of the number of employees" To he covered by the Act, the veteran must haxe been an employee at the time he or she entered military service Vrtually all types of employees. including profesmnais, are entitled to Job protectmn
'These senice mernhers are covered under 38 LlSC 9 2021 (1888) The i
RRh did not ~pecifealliaddress fhn categon of iervrce membeh pr~or IO
1881 The 1991 Acctgeneralli prmidesLhafsenleemembencalled to actwedutyunder 10 U 5 C 9 673b will fall under section 2021
Bhrhgold Drydock &Repair Carp 328 U S 275 285 (1846)
"R'nght 5 Waier Bras, 68 F Supp 695 (D Md 1841)
"38 L S C 55 20Zl(al. 2022 (18881 The lax Yal amended in 1874 Lo appli lo )fate andlocal goiernmenfr Thirexteiirionolcnierage ivarnotlnfended Io bereiroarfiie lo persona leailng actire duck prior to the date of enactment of the amendment December 3, 1874
under the VRRA. Reemplogment benefits have been denied, hmever. to corporate officials12 and elecred union officers13
A number of cases have concluded that independenr conrracrars do not fall within the empioyer-employee relationship contemplated under the VRRA" Courts consider all the facts and circurnstancei in determining whether an mdindual IS an employee or an mdepen-dent contractor, and give great weight to factors revealing supervision, direcrion, or control an the part of an employer
The VRRA protects emplojees who have either \.oluntanl> or Involuntarily left civilian employment to enter active dutg The VRRA also applies to those who ha7e reenlisted into the military ser "1Ce.O
Service members. including reservists and Uational Guard rnembels are not required to request a leave of absence before departing far active duty, except far those personnel ordered to report to active duty for training (ACDL'TRA). inactive duty trainmg. or full time training or full-time dut? in the National Guard1> Section 2024(d) of the Act mandatee that lese for reserve duty 'shall upon request be granted "la This provision operates as a notice require ment and waq not intended to give employers the right to refuie re quest? for absenceng Employees aha resigned or wcre discharged pnor to enlry onto active duty are not entitled to reemployment protection under the Act p'>
The most litigated issue mohing the VRRA in recent gears has been whether a sectmn ?0?4(d) request for leave to perform actire duty for rraining or inactive duty for training 1s subject to a stan-
.A~rlines. 176 F2d 7
B \I R Co 82 € 5178
19911 VETERANS' REEMPLOYMENT RIGHTS
dard of In light of the national significance of this issue and its different application among the circuits, the Supreme Court recently granted certiorari in King 2- St. Vincent's Hospital,z2a case presenting this question. In King, a thirty-five-year memberof the Alabama National Guard was selected for the position of Command Sergeant Mqar for the Alabama Guard. He advised h e employer, St. Vincent's Hospital, that he would be leaving his pasition as the manager of a security department for three years to fill the Guard position Although the Guard member believed he was entitled to reemployment rights, his employer denied the leave request because It R ~ S unreasonably long The Eleventh Circuit uphelda trial court ruling that a three-year request for a leave of absence was per se unreasonable.
Several circuit courts also have suggested that section 2024(d) requests far IeaTe of absence are subject to an adequate notice require^ memz4 Under this view, an employer may require advance notice of impending leave and may deny requests if adequate notice has not been provided.
Courts are not in agreement about whether section 2024(d) requests for leave are subject to a reasonableness test. Several courts, including the Fourth Circuit m Kolkhorst u. Tilgkman,zs have held that section 2024(d) does not permit employers to consider the reasonableness of a request for a leave of absence.2b
In Kolkhorst the court concluded that an employer's policy of establishing an upper limit on the number of employees sernng in the reserves violated section 2024.27
The court noted that "[tlhe reasonableness standards that have been imposed by other courts are contrary to the purpose of section 2024(d) to allow resen-ists to train with their mataw units without suffering prejudice or any adverse action from their employers "zB
"See, e9 Gulf Sfales Paper Corp, \ In@am 811 F2d 1164 (11th Clr 1887). Lee
Y City of Pen%sacola 631 F Zd 886 (6th Ca 1881) \lost of the litigation rnvolving the reasonablenesJ test har focused on the duration of the leave request According to alleartone coun, howeier, LhelengthofrheleaverJonl) ~neaf~e~ralfactoncou~i should consider 10 decermmmng rearonablenesr See Eidukanir I
Southeartern Pennh n i p huth . 873 F2d 688 i3d Cir 1889)
'lYO1 F2d LO68 (11th Cir 1980). cer1 sro?utd. 111 S Ct 860 (1981) L~~meGuardmembermK~ngwasorderedtofull tlmedutyunder32USC §602(f) 'dSaryer % Swift d Co 836 F2d 1267 00th Clr 1858), Burkan v Post-Bmwnmg, na88i F2d 1282 (1890) pefihonfor cmt hied Yo 88 1949"Id , Cronin v Police Depanment. 675 F Supp 847 iS D F Y 1887) T h e court also concluded that the employer's action iiolated the anndiJcnmmanan SLKoikhorst, 897 F2d at 1286
hc. 868 F2d 1245 (6th Ca 1988)
prmlaon of 38 L SC § 2OZlibli3)
MILITARY L.W REVIEW [I'd 132
The conc1us~on reached by the court in Kolkhorst regarding sec tion 2024(d) is correct. If leaves of absence under section 2024(d) are subject to standards of reasonableness and adequate notice. employen will apply their own subjective limits on an otherwise unconditional statute These indeterminate and \ague limitationz on the Act's unequivocal standards impermissibly limit t s intended protections and frustrate our national defense mterests bg prowding a diancentwe to serving in rewve positions far a 5igmficanr iength of time The Supreme Courr should reverse the circuit court decismn ~n Kmg and require courts to adhere to the unqualified terms of the iRRA
Congress has helped remoIe a small measure of uncertamtl m this area bg enacting legislation m February 1991 clanfymg That reser~ vists and National Guard members died LO active duty by the Presi-dent w11 be protected dunng the entire penod of active service without iimitation.2u Reseriists and Xational Guard members lay-mg employment for scheduled active duty far training. Inactive duty for training, and full-time Guard duty under rhe Active Duty Guard Reserve Program (AGR), however. remain subject to the notice requirement of section 2024(d)
111. CONDITIONS FOR REEMPLOYMENT
Five eli@bdity criteria ~ U S T
be satisfied before a returning E~RICC
member will...
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