LeRoy Collins Commentary 202

Commentary #202
20 July 2008


I have been associated with the Employer Support of the Guard and Reserve (ESGR) organization for over 20 years. ESGR includes approximately 2000 civilian volunteers organized under the U.S. Department of Defense to help enforce the USERRA Laws described below.

Most of the ESGR volunteers have military backgrounds, but it is not required. Our job is to know our communities well enough to call upon senior officers of local companies who have National Guard or U.S. Military Reserves in their employ to remind them of the USERRA Laws. In practice, most companies consider it their patriotic duty to comply, so our ESGR duty is typically a friendly reminder.

But if the employee complainant has complied with all the rules, and enforcement is necessary, our job as ESGR volunteers is to alert the U.S. Department of Labor, which is the enforcement authority of the USERRA Laws. Compliance is the easiest solution for all involved. /s/LeRoy Collins

Blue band divider with stars


By Mathew B. Tully - Special to the Army Times
Posted : July 28, 2008
Congress enacted the Uniformed Services Employment and Reemployment Rights Act in 1994 as a long-overdue rewrite of the Veterans’ Reemployment Rights Act.

Like that earlier law, USERRA applies to essentially all employers in this country, including federal, state and local governments, and private employers, regardless of size.

Contrary to what some may tell you, USERRA applies to voluntary as well as involuntary military service. This law is important and relevant, now more than ever, because more than 1.2 million National Guard and reserve members have been mobilized since the terrorist attacks of Sept. 11, 2001.

To have the right to re-employment under USERRA, five simple conditions apply:

• You must have left your civilian job to perform voluntary or involuntary service in the military. This can be anything from a drill weekend up to five years of active service, and you must have given your employer prior oral or written notice.

• Your cumulative period or periods of military service must not have exceeded five years with that employer.

• You must have been released from the period of service without having received a punitive (by court-martial) or other-than-honorable discharge.

• You must have made a timely application for re-employment with your pre-service employer after your release from service.

• If the period of service was more than 180 days, you have 90 days to apply for re-employment. Shorter deadlines apply after shorter periods of service.

We have heard from a number of Guard and reserve members who have been on active duty repeatedly (sometimes voluntarily, sometimes not) since Sept. 11, 2001. If you plan to do repeated tours, you need to stay aware of what counts toward your five-year limit.

Basically, if the service is involuntary, it is exempt from the five years. Some voluntary service is also exempt (such as most service in Afghanistan, Cuba, and Iraq/Kuwait) but as a loose rule with many exceptions, you should consider all voluntary service as nonexempt.

The issue of what kinds of duty are exempt from the five-year limit is before the U.S. Court of Appeals for the Federal Circuit in Washington in a case I am litigating.

I believe the U.S. Postal Service improperly fired an Army National Guard Special Forces sergeant major. This individual earned a Silver Star and two Bronze Star medals — one for valor — in Afghanistan, but because of his wartime service and military training time, he is accused of exceeding five years of military service for USERRA purposes.

In the next few months, the court will clarify the exemption provision of the five-year rule because of this landmark case.

If you meet the USERRA conditions, including the five-year limit, your employer has the legal obligation to promptly re-employ you, even if that means displacing another employee.

Moreover, the employer must treat you, for seniority and pension purposes, as if you had been continuously employed during your military service.

You have a lot at stake here. If you inadvertently go over the five-year limit or fail to meet any eligibility condition, you will not have the right to re-employment.

Many of the above tips on USERRA come to me from retired Navy Capt. Sam Wright, now a law partner of mine in Washington. I probably wouldn’t be a lawyer today if it were not for Sam’s advice on USERRA and because of unlawful violations of USERRA that I suffered when I was a law enforcement officer with the Justice Department.

In my case, I was able to recover a large cash settlement that allowed me to pay for attending Brooklyn Law School. Thanks to that law degree, I am active in making sure USERRA not only stays strong but gets stronger by making it work better for the many service members who put so much on the line for our country.

The information in this column is 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.

Mathew B. Tully, is a field artillery officer in the New York 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. View more “Ask the Lawyer” columns online at http://www.militarytimes.com/community/ask_lawyer.

Blue band divider with stars

/s/ LeRoy Collins, Jr.


Back to TOP