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LAW REVIEW 1066
USERRA Overrides Federal Agency Rule on “Outside Employment”
By Captain Samuel F. Wright, JAGC, USN
(Ret.)
1.1.1.8—USERRA Application to Federal Government
1.2—USERRA-Discrimination Prohibited
1.3.1.1—Left Job for Service and Gave Prior Notice
1.4—USERRA Enforcement
Q: I recently
completed four years of active duty in the Marine Corps. I left active duty and found a job for a
federal agency. My current status in the
Marine Corps is that I am a member of the Individual Ready Reserve (IRR). I am planning to join the Marine Corps
Reserve as an active drilling member.
I informed my immediate supervisor at work of my plans
to join the Marine Corps Reserve, and she referred me to an attorney in the
agency’s ethics office. The attorney
told me that I must complete an agency form “requesting permission to engage in
outside employment” and must obtain written permission of the agency before I am permitted to join the Marine
Corps Reserve.
I am concerned about the wording of the agency
form. It requires me to acknowledge that
my federal job requires my availability 24 hours per day, 365 days per year,
and that I will “remain subject to that condition of employment, regardless of
whether the employee is performing the [outside] position approved by this
application.” What happens if the
civilian employer tries to call me in to work while I am on a drill weekend or
annual training? Does that mean that I
must interrupt my Marine Corps Reserve training to report to the civilian job?
Is it lawful for this federal law enforcement agency
to require me to get its permission before joining the Marine Corps
Reserve? Can the agency require me to
interrupt military training to report to the civilian job?
A: The answer is “no” to both questions. Your agency’s policy is a clear and egregious
violation of the Uniformed Services Employment and Reemployment Rights Act
(USERRA). You do not need the employer’s
permission to join the Marine Corps Reserve, and you are not required to notify
the employer that you are considering joining the Marine Corps Reserve.
You are not required to give
notice to the employer until the first time that you will need to be away from
work in order to perform “service in the uniformed services.” USERRA defines that term broadly, and it
includes active duty, active duty for training, inactive duty training
(drills), initial active duty training, funeral honors duty, and time required
to be away from a civilian position of employment for the purposes of an
examination to determine fitness to perform any such duty. 38 U.S.C. 4303(13).
When you notify the employer
that you will need to be away from work for uniformed service, I suggest that
you phrase the notice as a request for permission, as a matter of courtesy to
the employer. But as a matter of law you
do not need the employer’s permission to be away from work, for a day or up to
five years, in order to perform uniformed service. The employer does not get a veto on your
absenting yourself from work in order to perform uniformed service.
If the employer persists in
trying to veto your joining the Marine Corps Reserve or in trying to veto your
absenting yourself from work to perform uniformed service, you should contact a
Department of Defense organization called the National Committee for Employer
Support of the Guard and Reserve (ESGR), at 800-336-4590. ESGR headquarters will put you in touch with
a volunteer ombudsman in your city, to work with you and your employer to
resolve this issue without “making a federal case out of it.” If ESGR is unable to help you, your next step
would be to make a formal complaint to the Veterans’ Employment and Training Service
of the U.S. Department of Labor (DOL-VETS), or to retain private counsel and
file an action in the Merit Systems Protection Board.
I suggest that you not call ESGR, or DOL-VETS, or me, or
anyone else, to complain about your employer, while on the clock with the
employer. I invite your attention to Law
Review 0702, available at www.roa.org/law_review. ESGR answers
its toll-free number between 8 a.m.
and 6 p.m. Eastern Time Monday through Friday. If you need to contact ESGR outside those
hours, in order to avoid calling from work, send an e-mail to Curtis.Bell@osd.mil and USERRA@osd.mil. Give ESGR your name, your telephone number,
and a time when you can be reached outside your civilian work hours.
The employer’s form is
designed for and is appropriate for an entirely different purpose than the
purpose it is being used for in your situation.
No law requires the employer to give you permission to take on an
outside civilian job. If you want to work the evening shift at
your local McDonald’s, you need the agency’s permission to undertake such
outside employment, but the Marine Corps
Reserve is fundamentally different from McDonald’s.
The agency ethics attorney
who told you that you need the agency’s permission to join the Marine Corps
Reserve is wrong and should know better.
Federal attorneys often show an unfortunate tendency to think only about
the specific law that they are charged with enforcing and to ignore other laws
that are more directly applicable.
Congress enacted USERRA in
1994, as a long-overdue recodification of the Veterans’ Reemployment Rights Act
(VRRA), which goes back to 1940. USERRA
is codified in title 38, United States Code, sections 4301-4335 (38 U.S.C.
4301-4335).
Like the VRRA, USERRA applies
to essentially all employers in this country, including the Federal Government,
state and local governments, and private employers, regardless of size. USERRA’s very first section expresses the
“sense of Congress that the Federal Government should be a model employer in
carrying out the provisions of this chapter.”
38 U.S.C. 4301(b).
The Federal Government,
through the enactment and enforcement of USERRA, is requiring all employers to
accommodate National Guard and Reserve service by employees and prospective
employees. In dealing with its own
employees and prospective employees, the Federal Government must do at least as
much as it requires other employers to do.
“Do as I say, not as I do” has always been a losing argument.
“And why beholdest thou the
mote that is in thy brother’s eye, but considerest not the beam that is in
thine own eye?” Matthew 7:7 (King James Bible)
At several congressional
hearings that I have attended, Congress has shown great displeasure and
impatience with federal executive agencies that flout USERRA. More than two years ago, Congress enacted
section 4335 of USERRA, 38 U.S.C. 4335.
This section requires the head of each federal executive agency (in
conjunction with the Director of the Office of Personnel Management) to train human resources personnel
(including supervisors) in the requirements of USERRA. Most federal human resources personnel have
not had this required USERRA training or weren’t listening when they attended
the training.
Section 4311(a) of USERRA
provides as follows: “A person who is a
member of, applies to become a member of,
performs, has performed, applies to
perform, or has an obligation to perform service in a uniformed service
shall not be denied initial employment, reemployment, retention in employment,
promotion, or any benefit of employment by an employer on the basis of that
membership, application for membership, performance
of service, application for service, or
obligation.” 38 U.S.C. 4311(a) (emphasis
supplied).
USERRA’s 1994 legislative history explains the
intent of section 4311 as follows:
“Current law protects Reserve and National Guard personnel from
termination from their civilian employment or other forms of discrimination
based on their military obligations.
Section 4311(a) would reenact the current prohibition against
discrimination which includes discrimination against applicants for employment
(see Beattie v. Trump Shuttle, 758 F.
Supp. 30 (D.D.C. 1991)), current employees who are active or inactive members
of Reserve or National Guard units, current employees who seek to join Reserve
or National Guard units (see Boyle v.
Burke, 925 F.2d 497 (1st Cir. 1991)), or employees who have a
military obligation in the future such as a person who enlists in the Delayed
Entry Program which does not require leaving the job for several months. See
Trulson v. Trane Co., 738 F.2d 770, 775 (7th Cir. 1984). The Committee [House Committee on Veterans’
Affairs] intends that these anti-discrimination provisions be broadly construed
and strictly enforced.” House Rep. No.
103-65, 1994 United States
Code Congressional & Administrative News 2449, 2456.
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