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LAW REVIEW 1054
Don’t Do Your Reserve Work on Your Employer’s Time
By Captain Samuel F. Wright, JAGC, USN (Ret.)
1.1.1.8—USERRA Coverage of Federal Government
1.2—USERRA-Discrimination Prohibited
1.3.1.1—Left Job for Service and Gave Prior Notice
1.3.1.2—Character and Duration of Service
1.4—USERRA Enforcement
Escher v. BWXT 7-12 LCC, No.
09-6054 (6th Cir. Aug. 18, 2010).
Rudolph N. Escher, Jr. is a Captain in the Navy
Reserve. As a civilian, he worked for
BWXTY-12, LLC (BWXT) until he was fired in September 2005. He filed suit against the employer in the
United States District Court for the Eastern District of Tennessee, contending
that the firing violated section 4311(b) of the Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. 4311(b).
Captain Escher contended that he was terminated from his
civilian job in retaliation for his complaints about how the employer had
designated and accounted for his military leave time. BWXT contended that it had fired him for
doing Navy Reserve work during company time and with company resources.
After the completion of the discovery process (depositions,
interrogatories, document production, etc.), but before trial, BWXT filed a
motion for summary judgment, under Rule 56(c)(2) of the Federal Rules of Civil
Procedure. That rule provides that
summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” The District Court granted the
summary judgment motion, and Captain Escher appealed to the United States Court
of Appeals for the Sixth Circuit, the federal appellate court that hears
appeals from district courts in Kentucky, Michigan,
Ohio, and Tennessee. On Aug. 18, 2010, a three-judge panel of the
6th Circuit affirmed the summary judgment for the defendant
employer.
In its opinion, the 6th Circuit panel described
BWXT as “a semi-autonomous agency within the Department of Energy.” If BWXT is a federal agency, this case should
have gone to the Merit Systems Protection Board (MSPB), rather than a federal
district court. The MSPB is a
quasi-judicial federal agency, created by the Civil Service Reform Act of 1978. The MSPB decides disputes between federal
employees and federal agencies under many laws, including USERRA. Section 4324
of USERRA, 38 U.S.C. 4324, gives the MSPB explicit statutory authority
(exclusive of the courts) to adjudicate claims that federal executive agencies
have violated USERRA.
I believe that the 6th Circuit panel erred in
characterizing BWXT as an “agency.” In
fact, BWXT is a private corporation that contracts with the Department of
Energy to perform certain functions for the Department. Thus, this case was appropriately filed in Federal
District Court and appealed to the 6th
Circuit, rather than the United States Court of Appeals for the Federal
Circuit.
In August 2005, someone filed an anonymous complaint with
the company, alleging that Escher was doing Navy Reserve business on BWXT time
and using BWXT resources. The BWXT
investigation of the complaint showed that on the computer that the company had
provided him Escher had archived 3,200 Navy Reserve e-mails, from 1999 to 2005,
in more than 240 individually named folders and sub-folders. He had also used BWXT equipment, and
apparently BWXT time, to prepare 18 PowerPoint presentations, 75 Word
documents, 38 Excel spreadsheets, 12 PDF documents, and 140 miscellaneous
documents, all pertaining to the Navy Reserve and not BWXT business. He had also used the BWXT telephone system to
make 110 local calls and 574 long distance calls on Navy Reserve business.
BWXT’s personnel director made the decision to fire Escher,
based on his egregious abuse of BWXT time and equipment. BWXT contended, and the evidence produced in
discovery affirmed, that the personnel director was not aware that Captain
Escher had filed a complaint about the way that his military leave was
characterized and accounted for, so the decision to fire him could not have
been motivated by irritation against him for having filed a USERRA
complaint. Moreover, the District Court
found and the Court of Appeals affirmed that the employer would have fired Escher anyway for the egregious abuse of time and
equipment, even if he had not been a member of a reserve component of the armed
forces and even if he had not filed a USERRA complaint.
This is not the first case I am aware of involving a
reservist getting into serious trouble for using employer time and equipment in
activities related to a reserve component unit.
My advice is simple: Don’t do it!
Do not give members of your unit your work telephone or work
e-mail. Do not make or accept telephone
calls at work that are related to your reserve unit, even if you are the
commanding officer. Reserve
Centers and Operational
Support Centers
and National Guard Armories: Do not conduct recall exercises during
civilian work hours. Do not call
reserve component members (not presently on active duty) at their civilian
jobs, unless it is a real mobilization and you need to contact them immediately
to order them to report. If you need
routine access to the individual during work hours, you must put that
individual on military orders for the entire day, and the individual must take
time off from the civilian job.
USERRA gives you the right to time off from your job to perform service in the uniformed
services. The law does not give you the
right to perform uniformed service while on the clock for the employer, and it
most certainly does not give you the right to use the employer’s equipment and
supplies to do work for the reserve unit or component.
In Law Review 0702 (Jan. 2007) and Law Review 1040 (June
2010), I strongly urged you not to
use the employer’s telephone or e-mail system or employer-paid time to call me
or e-mail me or anyone else to complain about your civilian employer. Remember the first rule of the Hippocratic
Oath: primum non ordum or first, do no harm. If the employer is annoyed with you about
your absences from work for military service, and if the employer is looking
for an excuse to fire you, the last thing
you want to do is to give the employer such an excuse. If you cannot afford a computer and Internet
service at home, go to your local public library.
You can reach the Service
Members Law Center
toll-free at 800-809-9448, extension 730, or by e-mail at SWright@roa.org. I am generally at work at ROA between 0700
and 1700 Eastern Time, Monday through Friday.
If you need to speak to me outside those hours, send me an e-mail and
give me a good time and number to call.
I will make arrangements to call you or to take your call outside your
civilian work hours, even if I have to wake up in the middle of the night to do
so. Yes, I think that your not calling
me from work really is that important.
In the nine years since the terrorist attacks of Sept. 11,
2001, the transformation of the strategic reserve to the operational reserve
has been completed. Employers are
increasingly angry about repeated, lengthy mobilizations and voluntary active
duty tours, on top of the traditional drill weekends and annual training. USERRA protects all these activities, and we
can tell the civilian employer that it must accommodate these absences from
work to perform uniformed service. The
employer does have the right to insist that when you are on the clock at the
civilian job you are concentrating solely on your civilian job responsibilities,
not your reserve component responsibilities.
I cannot overstate the importance of keeping your military activities
separate from your civilian job hours.
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