Reemployment rights for the guard and reserve: will civilian employers pay the price for national defense?

• Author: Forte, Michele A.

1. INTRODUCTION II. THE CHANGING OF THE GUARD: EVOLUTION OF MILITARY FORCE A. The Infancy of the Total Force Concept B. Modern Force Structure from the Persian Gulf War III. USERRA RIGHTS AND PROCEDURES A. General Coverage Provisions B. Discrimination and Acts of Reprisal 1. Motivating Factor and the Burden of Proof 2. Benefit of Employment 3. Hostile Work Environment C. Reemployment of Employees Absent Due to Uniformed Service 1. Proof Requirement for § 4312 2. Rights and Procedures for Reemployment under § 4312 3. Circumstances Where Reemployment is Not Required a. Impossible or Unreasonable b. Undue Hardship c. Temporary Position 4. Reemployment Positions for Returning Employees 5. Reemployment and Disability Accommodation 6. Reemployment by the Federal Government and Certain Federal Agencies D. Rights, Benefits and Obligations of Absent Employees 1. Seniority and Other Rights and Benefits 2. Health Plans 3. Pension Plans E. Enforcement Procedures IV. WHAT'S MISSING FROM USERRA: INCENTIVES FOR EMPLOYERS A. USERRA Protections Can Adversely Impact Employers B. Existing and Proposed Solutions Have Failed to Consider Employers V. CONCLUSION Today, National Guard and Reserve personnel are serving on the front lines of freedom in the war on terror, and they have provided vital relief to our citizens affected by Hurricanes Katrina and Rita.... Employers play a critical role in helping the men and women of the National Guard and Reserve carry out their mission. In offices, schools, hospitals, and other workplaces, employers provide time off, pay, health-care benefits, and job security to their Guard and Reserve employees. These patriotic efforts allow our men and women in uniform to focus on their military assignments and help strengthen our country. Americans are grateful to these employers for putting the needs of our citizens and our country's safety and security first.

   --President George W. Bush, October 14, 2005 (1)

1. INTRODUCTION

   Since September 11, 2001 approximately 517,000 Reserve component members of the United States military have been mobilized in support of Operations Noble Eagle, Enduring Freedom and Iraqi Freedom. (2) in 2006, during any given month, over 90,000 guard and reserve troops mobilized in support of current military operations around the world and in the United States. (3) These non-career soldiers, sailors, airmen and marines left their families and civilian jobs for up to twenty-four months at a time.

   While the Guard and Reserve supply critical manpower to the U.S. military, the absence of these individuals from their civilian employment can cause serious hardship to the employer and to the members' ability to maintain their civilian jobs. Despite the enactment of the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994, guard and reserve members continue to report instances of discrimination and adverse action as a result of their military service.

   The purpose of USERRA is threefold: to encourage noncareer service in the military by eliminating or reducing the negative effect on the members' civilian careers and employment; to minimize disruption in the lives of the service member, employers, co-workers and communities by providing for the prompt reemployment of a member upon completion of service; and to prohibit discrimination against persons because of their military service. (4)

   Today's full time active military forces are supported by seven guard and reserve components: Army National Guard, Army Reserve, Navy Reserve, Air National Guard, Air Force Reserve, Marine Corps Reserve, and Coast Guard Reserve. (5) These personnel are protected by USERRA when called to federal active service. (6) Although small in number and not as publicly recognizable as the five branches of the military, commissioned members of the Public Health Service are also protected by USERRA. (7)

   Despite the ten-year existence of the Act, even the federal government as an employer has a difficult time balancing the need for an efficient workforce and complying with the Act's provisions. (8) This begs the question of whether USERRA is too broad in its protections and too burdensome on employers. The military's recent changes in force structure resulted in a reduction of active duty career forces and an increased reliance on non-career guard and reserve forces. As a result, the civilian sector that employs those guard members and reservists must, in effect, shoulder some of the economic burden of national defense, in addition to what they already pay in the form of taxes and fees to the federal government.

   After its 1994 implementation, USERRA aided service members, but did not draw much attention beyond the military community and the affected civilian employers. The activation of hundreds of thousands of guard and reserve troops following September 11, 2001, and the subsequent prolonged military actions in Afghanistan and Iraq, brought employment issues involving non-career military members to the forefront of legal and public attention. Prior to 2001, there was scarcely a mention of USERRA except in military law journals such as the Army Lawyer and the Air Force Law Review. in the years 2001 through 2006, articles and comments focusing specifically on aspects of USERRA could be found in more than twenty legal journals.

   For the first time since the Vietnam conflict, military action outside of the United States is impacting civilians at home. Aside from the obvious toll on family members of the deployed servicemembers, civilian employers are also facing business related hardships due to the absence of their reserve service member employees.

   It is estimated that seventy percent of reservists called to active duty come from small or medium sized companies in the civilian labor force. (9) Additionally, eleven percent of them work in family businesses or are self-employed. (10) This distribution of labor presents difficult questions about who will bear the burden of funding our nation's military forces and for the ultimate sharing in responsibility for defending our nation and maintaining military readiness.

   With the unprecedented number of citizen-soldiers being called to active duty for extended periods of time, and the burden falling on civilian employers who may not have the economic power to support it, economic incentives must be added to USERRA to ensure compliance. Without such initiatives, the protections of USERRA may be inadequate to address the needs of the military member, the burdens of the civilian employer, and the realities of the modern labor market.

   While some commentators have called for an expansion of USERRA to address student reservists' need to maintain academic standing and scholarships, and rights and benefits for guard personnel activated by a state governor, these expansions fall outside of the purpose and jurisdiction of USERRA. (11) If any expansion of USERRA is warranted, it should be to address the economic and production burdens shouldered by civilian employers. The first step in the analysis is to understand how our nation's military evolved into a Guard and Reserve dependent organization.

2. THE CHANGING OF THE GUARD: EVOLUTION OF MILITARY FORCE

   1. The Infancy of the Total Force Concept

      Forty-six percent of the uniformed military forces are comprised of guard and reserve members. (12) The use of guard and reserve forces is not a new concept in national defense. The National Guard traces its roots to the militia of the Massachusetts Bay Colony circa 1636. (13) However, the substantial reliance on guard and reserve personnel for national defense has grown since World War II, culminating in our present day reliance on them for almost fifty percent of our fighting force. (14)

      As the personnel makeup of our modern military force evolved to incorporate more guard and reserve personnel, legislation began to address the difficulties guard and reserve members would face as a result of being called to serve on active duty. The first legislation to address the reemployment needs of guard and reserves forces came in the form of the Selective Training and Service Act of 1940. (15)

      That statute, enacted just prior to World War If, was created as Congress saw the need to recruit and train an ample number of civilians to bolster the small standing military forces at that time. (16) The legislation was a contingency based plan; if war broke out, these reserve additions to the force would serve and then return to their civilian jobs at the conclusion of their service. (17)

      Following the war, American military posture moved into the Cold-War stance and adopted conscription policies to maintain adequate troop numbers. Congress reenacted the employment protection legislation as part of the Military Selective Service Act (18) to protect the typical draftee who served two to three years and then returned to civilian life. (19)

      The Vietnam era brought the next revisions to reemployment rights. Following the Vietnam conflict, conscription was rescinded and the concept of the all-volunteer force was employed. Statutory employment protection was an inducement to lure one-term volunteers to replace draftees and to promote continued reserve service in those separating from active duty. (20) Enticing service members to remain available in a reserve capacity was critical at this time due to the military's shift from relying on a large standing force to a leaner active component complimented by a reserve component.

      By 1973, the Department of Defense had officially adopted a "Total Force" policy which emphasized that all components of the military: Active, Guard and Reserve, should be prepared and readily available to provide our national defense. (21) Reducing the size of the active military to cut defense spending translated into relying more on a reserve force that would cost only a fraction of maintaining a large active force. (22)

      Complimenting this shift in military policy...