The War(riors) at Home: Examining Userra’s Veterans’ Reemployment Protections When Hostility Follows Soldiers to the Workplace
| Citation | Vol. 28 No. 3 |
| Publication year | 2010 |
Georgia State University Law Review
3-28-2013
The War( riors) at Home: Examining USERRAs Veterans' Reemployment Protections When Hostility Follows Soldiers to the Workplace
Elizabeth A Leyda
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Recommended Citation
Leyda, Elizabeth A. (2011) "The War( riors) at Home: Examining USERRA's Veterans' Reemployment Protections When Hostility Follows Soldiers to the Workplace," Georgia State University Law Review: Vol. 28: Iss. 3, Article 14. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss3/14
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THE WAR(RIORS) AT HOME: EXAMINING USERRA'S VETERANS' REEMPLOYMENT PROTECTIONS WHEN HOSTILITY FOLLOWS SOLDIERS TO THE WORKPLACE
Elizabeth A. Leyda*
Introduction
Ours is a country born out of war. America achieved her independence through the sacrifice of the first citizen-soldiers, epitomized by our first president and most celebrated general in American history, George Washington.1The tradition of an American citizen military forms a central pillar of our national identity and has shaped our military history, policy, and law.2 Thus, Americans have always been—and continue to be—challenged with balancing the lives they lead as ordinary civilians and the experiences millions have had defending our country at war.3 From the very beginning of our history our leaders have acknowledged this tension. At the conclusion of the Revolutionary War George Washington addressed his troops, who felt disgruntled that they could not resume their normal lives for lack of pay and guaranteed pension.4 Hoping to
J.D. Candidate, 2012, Georgia State University College of Law. Special thanks to Dean Kelly Timmons for her guidance and encouragement.
1. Andy P. Fernandez, The Need for the Expansion ofMilitary Reservists' Rights in Furtherance of the Total Force Policy: A Comparison of the USERRA and ADA, 14 St. Thomas L. Rev. 859, 861 (2002).
2. See Daniel B. Denning, Building and Sustaining America's Army, 56 Army 49, 49 (2006) (describing America's all-volunteer military personnel as "the centerpiece of our great Army"); Military Reserve—Manpower Problems in the Past, 34 Cong. Dig. 100, 100, 128 (1955) [hereinafter Manpower Problems] (describing the origins of American reserve forces and their role in war from the Revolutionary period through 1955).
3. Mathew B. Tully & Ariel E. Solomon, Ensuring the Employment Rights of America's Citizen-Soldiers, 35 Hum. Rts. 6, 6 (2008) ("The challenges of reintegration are not novel."). The Department of Veterans Affairs estimates that as of 2006 there were approximately twenty-four million veterans living in the United States. U.S. Dep't Veterans Aff., Table 5L: Veterans 2000-2036 by Race/Ethnicity, Gender, Period Age, (Sept. 30, 2006), http://www.va.gov/VETDATA/docs/Demographics/5l.xls.
4. George Washington, Farewell Address to His Officers at Newburgh, New York (Mar. 15, 1783),
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appease them, he remarked that maintaining peace in light of these setbacks was "one more distinguished proof of unexampled patriotism and patient virtue, rising superior to the pressure of the most complicated sufferings."5
Congress has since acted to relieve the suffering, particularly of the economic sort, felt by American soldiers returning home to resume their normal work and family lives.6 The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most recent incarnation of legislation designed to protect service members from employment discrimination.7 USERRA requires employers not only to rehire, but also to retain employees who return from active duty for a specific period of time.8 Laws designed to protect veterans' civilian employment demonstrate our country's long-standing commitment to a citizen military.9 The changing nature of war, as well as the military's response to it,10 have inevitably increased
in Words that Changed America: Great Speeches that Inspired, Challenged, Healed, and Enlightened 21 (Alex Barnett ed., 2003).
5. Id. at 24.
6. 38 U.S.C. § 4301(a) (2006). The statute specifically enumerates the following purposes of USERRA:
(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;
(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and
(3) to prohibit discrimination against persons because of their service in the uniformed services.
Id.
7. See 38 U.S.C. §§ 4301-4335 (2006).
8. 38 U.S.C. § 4311(a) (2006) ("[Service members] shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership . . . ."); 38 U.S.C. § 4316(c) (2006) (describing the timeframe during which employers are required to retain returning service member employees).
9. See Tully & Solomon, supra note 3, at 6 ("Veterans benefits statutes designed to assuage the strain of reintegration have a lengthy history, predating the culmination of World War II."). The fact that the U.S. maintains this commitment in light of significant ongoing military pursuits around the world underlines its social and historical significance. See Denning, supra note 2, at 50 (describing U.S. involvement in the global war on terror as "long" and "protracted").
10. See generally Denning, supra note 2 (describing changes proposed by the Secretary of the Army to restructure the Army with an emphasis on reserve forces as a means of achieving greater overall efficiency).
2012] USERRA'S VETERANS' REEMPLOYMENT PROTECTIONS 853
tension between civilian life and military service, creating an environment ripe for new challenges.11
The United States' large and growing reliance on noncareer military personnel,12 as well as its recent protracted campaigns in Iraq and Afghanistan,13 have strained the relationship between military and civilian life.14 Thousands of citizen soldiers, especially Reservists, have fluctuated between civilian employment and active military duty at previously unheard-of rates.15 In 2007, the Department of Defense (DOD) officially changed its policy on the length of active duty the military can require Reservists and National Guardsmen to serve within a five-year period.16 The effect of this policy change was twofold—it greatly extended the duration of Reservists' absences from their civilian jobs to up to two years at a time and it meant that the same soldiers could be called back up for duty as many times as the military deemed necessary.17
These policy shifts, imposed on an already stressed Reserve and National Guard,18 together with the economic downturn that hit
11. Michele A. Forte, Reemployment Rights for the Guard and Reserve: Will Civilian Employers Pay the Price for National Defense?, 59 A.F. L. Rev. 287, 290-91 (2007) (asserting that recent military restructuring in favor of reservist troops over permanent active-duty soldiers has placed a burden on employers to absorb some of the cost of our national defense); Tully & Solomon, supra note 3, at 6 ("[R]eliance on members of the Reserve and Guard . . . has created an unparalleled urgency to confront the unique challenges faced by noncareer soldiers returning home to civilian employment.").
12. Forte, supra note 11, at 289; Konrad S. Lee, "When Johnny Comes Marching Home Again" Will He Be Welcome at Work?, 35 Pepp. L. Rev. 247, 248 (2008).
13. Denning, supra note 2, at 50; see Kathryn Watson, Returning Troops Face New Fight for Old Jobs: Federal Law Easy for Employers to Ignore, Wash. Times, July 5, 2010, at A1.
14. Forte, supra note 11, at 291 ("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.").
15. Id. (calling the number of soldiers called up for duty in the last ten years "unprecedented"); Lee, supra note 12, at 251.
16. David S. Cloud, Military Eases Its Rules for Mobilizing Reserves, N.Y. Times, Jan. 12, 2007, at A13. In order to address troop shortages in Iraq, the DOD suspended its previous policy of limiting the duration of active duty to no more than twenty-four cumulative months, instead only limiting deployment for noncareer service members to twenty-four consecutive months at a time. Id.
17. Id. The practical effect of removing the twenty-four month cap on Reservist deployment within a five-year period is that active duty could theoretically become unlimited. In practice, the DOD limited deployment duration to fifteen consecutive months in 2007 and then to twelve consecutive months in August 2008. These limits do not dictate how many fifteen or twelve month deployments a Reservist would have to serve within five years. Twelve Months Is Too Long, Army Times, June 21, 2010, at 20.
18. Bradley Graham, Reservists May Face Longer Tours of Duty, Wash. Post, Jan. 7, 2005, at A1
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bottom in 2009,19 drove a wedge between employee service members and many employers.20 At a time when businesses already felt financial strain, accommodating their Reservist and Guardsmen employees' disruptive and unpredictable schedules created costly logistical difficulties.21 in the past three...
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