Military Law, Military Law Advice, Ask a Lawyer - Air Force Times

USERRA offers invaluable protection for reservists

With the deployment of hundreds of thousands of National Guard and reserve members in the past few years — and with more than 81,000 mobilized today — the Uniformed Services Employment and Reemployment Rights Act is a very important issue for anyone serving in a reserve component.

USERRA, enacted Oct. 13, 1994, was designed to expand on the Veterans’ Reemployment Rights law, which can be traced back to 1940.

USERRA is about three times as long as the VRR law in terms of the number of words and sections. But the additional information provided in USERRA makes it easier to understand and apply; the greater detail creates far less ambiguity for both employees and employers.

The basic purpose of USERRA is to encourage non-career military service by making it easier for participants to enter and remain in the civilian work force while still in uniform. USERRA does this by penalizing employers who discriminate or deny benefits to uniformed service members, to anyone who applies to be a uniformed service member or to uniformed service veterans.

The term “uniformed service” refers to members of the Army, Navy, Air Force, Marine Corps and Coast Guard, both active-duty and reserve; the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training or full-time (Title 32) duty; the commissioned corps of the Public Health Service; and anyone else designated by the president in time of war or national emergency.

Types of service covered by USERRA include voluntary or involuntary active duty; active duty for training; inactive-duty training; full-time National Guard duty (under Title 32); any period in which someone is absent from a job to undergo an examination to determine his fitness to perform such duty; and any period in which someone is absent from a job to perform funeral honors duty.

To make use of the protections allowed under USERRA, you must meet five simple eligibility requirements:

• You must have a civilian position which you left (either temporarily for a drill weekend or longer, such as for a deployment overseas or for a regular four-year active-duty commitment) to perform “service in the uniformed services,” either voluntarily or involuntarily.

• You must give your civilian employer prior notice, orally or in writing, unless advance notice is not permitted because of military necessity.

• You must not exceed the cumulative five-year limit on military service while remaining with a specific employer. (Numerous exceptions to this five-year rule exist and will be the subject of later columns.)

• You must be released from the period of service without receiving a punitive or other-than-honorable discharge.

• You must make a timely application for reemployment after release from service.

I’ll discuss the finer points of these requirements in future columns.

USERRA is clear about being a floor, not a ceiling, on your rights as someone who is serving or has served in the military.

In other words, if state law, your employer’s policy or a union contract provides you with greater rights or benefits, then USERRA does not supercede or nullify them. However, it does supercede state laws, contracts, policies and agreements that reduce, limit or eliminate USERRA rights or that impose additional eligibility criteria on your exercise of those rights.

Labor Department regulations explaining USERRA provisions in straightforward language are in the Code of Federal Regulations. A copy is online at http://www.dol.gov/vets/regs/fedreg/final/2005023961.pdf.

The Defense Department also issued USERRA regulations at 32 CFR 104, as did the Merit Systems Protection Board at 5 CFR 1208 and the Office of Personnel Management at 5 CFR 353. You can find these regulations by going to the CFR main page on the Government Printing Office Web site at http://www.gpoaccess.gov/cfr/index.html and typing the appropriate CFR reference into the search engine.

Mathew B. Tully, Esq., is a field artillery major in the New York Army National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

The information in this column is being provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Discuss:

Service Employment and Reemployment Rights Act (USERRA)