Serving their country and their communities: the Uniformed Services Employment and Reemployment Rights Act of 1994

FBI Law Enforcement Bulletin,The, July, 2005 by Lisa A. Baker

Hundreds of thousands of "citizen soldiers" have been called to active duty in the military since the events of September 11, 2001. These citizen soldiers leave their families and jobs behind, often leaving with questions about their future employment security when they return, as well as benefits, such as health insurance and their pensions, while they are away. (1) In addition, many employers find themselves wondering what responsibilities they owe the departing employees during their absence and upon return to civilian life. Not surprisingly, the law enforcement community presently is dealing quite often with these issues given the significant representation of prior military in law enforcement. Given the impact continued military service can have on the personal and professional lives of law enforcement personnel, it is important that both law enforcement employers and employees who leave to perform military duty have an understanding of the rights and obligations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). (2)

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This article provides a general overview of the background and purpose behind USERRA in addition to the rights and obligations of the employee and employer and the prohibition against discrimination based on active duty. Issues addressed include the right to reemployment, the impact active duty has on benefits, such as health insurance and pensions, and notice requirements imposed on both employers and employees. The article is intended only as a general overview of key aspects of USERRA. For more specific information, the reader may want to refer to the U.S. Department of Labor (DOL) at http://www.dol.gov. In this Web site, the DOL's Veterans' Employment and Training Services (VETS) has published extensive information regarding USERRA, including proposed regulations interpreting USERRA, published on September 20, 2004. (3)

BACKGROUND AND SCOPE

USERRA was enacted by Congress in 1994 for the purpose of prohibiting discrimination against individuals because of their voluntary or involuntary military service and encouraging military service by lessening the disadvantages associated with such service when a civilian career is impacted. (4) USERRA has broad application, covering nearly all employees, including part-time and probationary employees, as well as all U.S. employers, whether in the private or public sector and regardless of size. (5) The term "employer" also includes individuals. (6) This has been interpreted as allowing an individual seeking enforcement of USERRA to pursue an action not just against the employing entity but also against individuals who have authority within the employing entity regarding the employment decision. (7)

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Congress also provided a comprehensive definition of "uniformed services." This is defined to include employees who serve in the Army, Navy, Air Force, Marine Corps, Coast Guard, as well as all Reserve components of each, the Army or Air National Guard, and the Commissioned Corps of the Public Health Service. In addition, the president has the authority to identify any other category of persons as covered by USERRA during time of war or emergency.

Congress also clarified the type of "uniform service" which triggers the rights and responsibilities provided for in USERRA. (8) Included within the covered service is duty performed, regardless of whether it is voluntary or involuntary, while in active duty, active duty for training, as well as inactive duty training, and full-time National Guard duty. In addition, an employee's absence from work to assess the employee's fitness to take part in any of the above activities also is covered by USERRA. In 2002, Congress expanded USERRA's reach to include public service performed in a crisis situation by including within the definition of "uniform service" duty performed by intermittent disaster personnel for the Public Health Service, as well as time for taking part in training for such activities. Funeral honor duty performed by National Guard or reserve members also is included.

In addition, to be eligible for reemployment, the uniform service must be under the authority of the military. In other words, the absences must be connected to actual military service. For example, in Leisek v. Brightwood Corp., (9) John Leisek, a former employee of a company and a member of the National Guard, sued after he was denied reemployment following his absence to participate in National Guard activities. The Court concluded that he had no right to be reemployed as he was not engaged in "uniformed service" at the time of his absence from his employer. Prior to his absence for the guard, Leisek indicated that he would be engaged in Guard duties at various locations and various dates and asked for time off accordingly. He eventually did receive military orders for some of the dates and locations, but not for all of them. The Court held that he was not serving in the "uniformed services" as to those dates for which he was not under orders to serve.