Fort Bliss Monitor

Federal law protects reemployment of Reserve Soldiers

Daniel P. McKernan
Legal Assistance Chief

The Army, along with the other military services, since Sept. 11, 2001, has been calling up Reserve Corps Soldiers from the Army Reserve and Army National Guard to augment our active duty force. At present, more than 420,000 Reserve Component servicemembers have been mobilized.

When a RC member is called to active duty, this person generally leaves a civilian job behind. When a RC member is separated from active duty, the hope is to return to the civilian job.

This article will discuss the Uniformed Services Employment and Reemployment Rights Act of 1994, a federal law, which provides a variety of reemployment protections and other benefits for our Reserves who are called upon to perform military service.

Under USERRA, when a servicemember leaves a civilian job to perform military services, the member is entitled to return to the job, provided the law’s eligibility criteria have been met. USERRA applies in wartime and peacetime, to most civilian employers, including the federal, state and local governments, and no distinction is made if the service is voluntary or involuntary.

USERRA is a federal law. USERRA does not have control over any state law, including a local law or ordinance, contract, agreement, policy, plan or other matter that establishes a right that is more beneficial to service members than USERRA. In other words, USERRA sets out the minimum protections of RC servicemembers called up for active duty. At the same time, state and local laws cannot diminish the rights provided by USERRA.

Initially, some distinction must be made regarding the type of service being performed. Performing federal services or training in the Army, Navy, Marine Corps, Coast Guard and Public Health Service commissioned corps, as well as the reserve components of each of these services comes within USERRA. Servicemembers, from the Army National Guard and the Air National Guard, performing federal service or training, are within USERRA – but if performing state services, they are not with USERRA and need to look to state’s laws for reemployment protection.

Subsequent to performing services or training in the uniformed services, a servicemember must meet five eligibility criteria to ensure a reemployment right:

• The member must have held a civilian job.
• The member must have informed the employer of the military service.
• The period of service must not have exceeded five years.
• The member must be released from service under honorable conditions.
• The member must report back to the civilian employer in a timely manner or have submitted a timely application for reemployment.

Each of the above criteria is a generalized, simple statement of the law. The reality is that each criterion is somewhat complex. As an example, does accepting a job that starts three months in the future qualify under holding a civilian job?

USERRA not only protects a member regarding reemployment by a prior employer but also provides some protections against denials of initial employment, retention in employment, promotion, or any benefit of employment due to being a member of, applying to be a member of, or having been a member of, a uniformed service or because of performing military service.

Individuals who believe they have been adversely affected in their employment due to their affiliation, or performing services, with the uniformed services can obtain assistance from the Veterans’ Employment and Training Services through the Department of Labor. VETS can contact your employer to help resolve the matter and, if necessary, conduct an investigation. If VETS cannot resolve the matter through negotiations with the employer, VETS can refer the case to the attorney general where the employer is a state or local government or a private employer. If the employer is the federal government, the case is referred to the Office of Special Counsel. If a violation exists, the AG or the OSC may provide the member with free legal representation. If the AG or OSC decline the case, a private law suit is still available.

If you have questions, you can contact the National Committee for Employer Support of the Guard and Reserve at their Web site at www.esgr.org or by phone at 1-800-336-4590. Alternatively, you can contact the Legal Assistance Office, 568-7141 or 568-6513, and obtain an appointment to talk with an attorney.



www.bliss.army.mil	Published for the Fort Bliss/El Paso, Texas Community	February 24, 2005

<map name="boxmap-b4"> <area shape="rect" coords="0, 589, 120, 600" href="http://rcm.amazon.com/e/cm/privacy-policy.html?o=1" > <area coords="0,0,10000,10000" href="http://www.amazon.com/exec/obidos/redirect?tag=&creative=92501&camp=8117&link_code=dl1&path=subst/misc/amazon-cobrand-cc/v3/marketing-from-associates-step1.html/ref%3Db1_assoc_29" > </map>	Federal law protects reemployment of Reserve Soldiers Daniel P. McKernan Legal Assistance Chief The Army, along with the other military services, since Sept. 11, 2001, has been calling up Reserve Corps Soldiers from the Army Reserve and Army National Guard to augment our active duty force. At present, more than 420,000 Reserve Component servicemembers have been mobilized. When a RC member is called to active duty, this person generally leaves a civilian job behind. When a RC member is separated from active duty, the hope is to return to the civilian job. This article will discuss the Uniformed Services Employment and Reemployment Rights Act of 1994, a federal law, which provides a variety of reemployment protections and other benefits for our Reserves who are called upon to perform military service. Under USERRA, when a servicemember leaves a civilian job to perform military services, the member is entitled to return to the job, provided the law’s eligibility criteria have been met. USERRA applies in wartime and peacetime, to most civilian employers, including the federal, state and local governments, and no distinction is made if the service is voluntary or involuntary. USERRA is a federal law. USERRA does not have control over any state law, including a local law or ordinance, contract, agreement, policy, plan or other matter that establishes a right that is more beneficial to service members than USERRA. In other words, USERRA sets out the minimum protections of RC servicemembers called up for active duty. At the same time, state and local laws cannot diminish the rights provided by USERRA. Initially, some distinction must be made regarding the type of service being performed. Performing federal services or training in the Army, Navy, Marine Corps, Coast Guard and Public Health Service commissioned corps, as well as the reserve components of each of these services comes within USERRA. Servicemembers, from the Army National Guard and the Air National Guard, performing federal service or training, are within USERRA – but if performing state services, they are not with USERRA and need to look to state’s laws for reemployment protection. Subsequent to performing services or training in the uniformed services, a servicemember must meet five eligibility criteria to ensure a reemployment right: • The member must have held a civilian job. • The member must have informed the employer of the military service. • The period of service must not have exceeded five years. • The member must be released from service under honorable conditions. • The member must report back to the civilian employer in a timely manner or have submitted a timely application for reemployment. Each of the above criteria is a generalized, simple statement of the law. The reality is that each criterion is somewhat complex. As an example, does accepting a job that starts three months in the future qualify under holding a civilian job? USERRA not only protects a member regarding reemployment by a prior employer but also provides some protections against denials of initial employment, retention in employment, promotion, or any benefit of employment due to being a member of, applying to be a member of, or having been a member of, a uniformed service or because of performing military service. Individuals who believe they have been adversely affected in their employment due to their affiliation, or performing services, with the uniformed services can obtain assistance from the Veterans’ Employment and Training Services through the Department of Labor. VETS can contact your employer to help resolve the matter and, if necessary, conduct an investigation. If VETS cannot resolve the matter through negotiations with the employer, VETS can refer the case to the attorney general where the employer is a state or local government or a private employer. If the employer is the federal government, the case is referred to the Office of Special Counsel. If a violation exists, the AG or the OSC may provide the member with free legal representation. If the AG or OSC decline the case, a private law suit is still available. If you have questions, you can contact the National Committee for Employer Support of the Guard and Reserve at their Web site at www.esgr.org or by phone at 1-800-336-4590. Alternatively, you can contact the Legal Assistance Office, 568-7141 or 568-6513, and obtain an appointment to talk with an attorney.