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LAW REVIEW 1097
Is It Feasible To Expand the Active Component to Relieve the Burden on Employers of Reserve Component Personnel?
By Captain Samuel F. Wright, JAGC, USN
(Ret.)
1.1.1.2—USERRA Applicability to Small
Employers
1.3.1.2—Character and Duration of
Service
Q:
I am a life member of ROA and I retired from the Army Reserve in
1988. I also own and operate a small
business, with only 13 employees. One of
my employees is an officer in the Army Reserve, and another is an enlisted
member of the Marine Corps Reserve.
These two employees have been called to active duty multiple times,
sometimes voluntarily and sometimes involuntarily, on top of their monthly
drill weekends and annual training periods.
These two employees perform important functions at my small business,
and accommodating their frequent and lengthy absences for military training and
service is getting to be a real problem for me, as the operator of a small
business. During my 1965-88 Army Reserve
career, I was never asked to do more than one weekend of training per month and
two weeks of annual training per year.
What gives? Does the Uniformed
Services Employment and Reemployment Rights Act (USERRA) require me to accommodate
these frequent and lengthy absences from work by these two employees?
A:
Yes. The days of National Guard and Reserve
(NG&R) service as “one weekend per month and two weeks in the summer” are
gone forever. The transformation of the
NG&R from a strategic reserve (available only for something akin to World
War III) to an operational reserve (routinely used for military operations like
Iraq and Afghanistan) began in 1973, when Congress
abolished the draft and the Department of Defense (DoD) adopted the Total Force
Policy (TFP).
The real
implementation of the TFP began in August 1990, two years after you
retired. Iraq invaded and occupied Kuwait and President George H.W. Bush drew
“a line in the sand” and responded forcefully, to protect Saudi Arabia and to liberate Kuwait.
As part of his military response, President Bush ordered the call-up of
NG&R units, for the first significant call-up of NG&R forces since the
Korean War. All of the supposed domestic
and international political reasons that made it “impossible” to call up
NG&R forces for something short of World War III disappeared when President
Bush called them up, and they performed very well in the 1990-91 conflict. Please see “Reserve Resolve” by Fred Minnick,
on pages 70-75 of the January-February 2011 issue of The Officer.
Later in the
1990s, President Clinton continued to use NG&R forces for operations in the
former Yugoslavia, Haiti, and elsewhere. The TFP has passed its greatest test since
the terrorist attacks of September 11, 2001.
As of December 14, 2010, 793,090 NG&R personnel have
been called to the colors since September 11, 2001 for Operation Noble Eagle, Operation
Enduring Freedom, Operation Iraqi Freedom, and Operation New Dawn.
Military
operations in Iraq and Afghanistan would have been impossible without
this NG&R participation, and the nation’s reliance on NG&R personnel is
most unlikely to decrease in the foreseeable future. Please see “Valuable Readiness” by the
Honorable Dennis McCarthy (Assistant Secretary of Defense for Reserve Affairs)
on pages 28-30 of the upcoming issue of The
Officer.
Q:
I think that it is fundamentally unfair to continue to put this burden
on civilian employers, especially small employers like myself. I think that the Active Component (AC) should
be expanded substantially, and the NG&R components should go back to their
traditional role as a strategic reserve.
In 2007,
Congress and DOD expanded the active duty strength of the Army by 60,000 and of
the Marine Corps by 27,000. The National Defense Authorization Act for Fiscal
Year 2009 authorized an additional 7,000 active personnel for the Army and
5,000 for the Marine Corps. Significantly relieving burdens on employers of
NG&R personnel would require a much larger increase, and that is simply not
feasible at this time of record budget deficits and fiscal stringency for DoD.
Moreover, even if money were unlimited, recruiting the necessary quantity and
quality of AC personnel is simply not demographically feasible, especially
after the economy improves and the unemployment rate drops.
For the next
several years, the age-18 cohort will decline significantly. The National Center for Health Statistics, in the United
States Department of Health and Human Services, has reported on the number of
live births in the United States by year as follows: 1990-4,179,000; 1991-4,111,000;
1992-4,084,000; 1993-4,039,000; 1994-3,979,000; 1995-3,892,000. It should also
be noted that DoD has estimated that only 1/3 of young adults (age 18-25) in
our country are eligible for military service. The other 2/3 are disqualified
for many reasons, but most commonly (a) obesity, diabetes, and other medical
problems; (b) mental and educational deficiencies; (c) criminal convictions;
and (d) not being U.S. citizens or lawful permanent residents.
When the
economy improves and youth unemployment rates drop, it will become increasingly
difficult for the services to meet recruiting quotas to support current active
duty numbers. Trying to meet greatly increased quotas to support greater AC
strength numbers cannot even be contemplated. Relieving the pressure on
NG&R members and their civilian employers by substantially expanding the AC
is just not feasible.
Some employers and employer
associations assert that USERRA was written for the old days when service in
the National Guard and Reserve was generally limited to one weekend per month
and two weeks in the summer. These employers and associations assert that
USERRA is being misused as the traditional strategic reserve transforms into an
operational reserve.
This assertion is an incorrect reading of history. Congress enacted the
reemployment statute for World War II, and the burden placed on employers today
pales in comparison to the burden placed on civilian employers during and
immediately after that war. When Japan surrendered on Sept. 2, 1945, the United
States had 12 million men and women on active duty in the armed forces.
Within a few weeks, that number was reduced to three million. Even if only half
of the nine million returning veterans had civilian jobs to return to, that
still amounts to 4.5 million men and women demanding (with the force of federal
law behind them) that their pre-service employers reemploy them, even if that
meant displacing other employees.
Starting in the 1970s, the seven Reserve Components encouraged their members to
participate in military training and service well beyond the minimum
requirements, and a long debate ensued as to whether an implied “rule of
reason” limited the frequency and duration of military service periods for
National Guard and Reserve members. In 1981, the Department of Labor (DOL)
bowed to pressure from employer interests and announced a “90-day rule”: that
the individual Reserve Component member had the right to reemployment after
military training or service only if such periods of service did not exceed 90
days in a three-year period. Just a few months later, DOL
bowed to pressure from DoD and Congress and rescinded this 90-day rule.
Through the 1970s and 1980s, there were conflicting court decisions as to
whether National Guard and Reserve service that exceeded the minimum
requirements was protected by the reemployment statute. The Supreme Court
finally put an end to that argument by holding clearly and unanimously that the
right to time off from one’s civilian job for military training or service was
not subject to any implied limit or “rule of reason.” See King v. St. Vincent’s
Hospital, 502 U.S. 215 (1991).
Three years later, Congress enacted USERRA as a comprehensive rewrite of the
1940 reemployment statute. In section 4312(h) of USERRA, Congress codified the
Supreme Court’s holding in King: “In any
determination of a person’s entitlement to protection under this chapter, the
timing, frequency, and duration of the person’s service, or the nature of such
training or service (including voluntary service) in the uniformed services,
shall not be a basis for denying protection of this chapter if the service does
not exceed the limitations set forth in subsection (c) [the five-year limit]
and the notice requirements established in subsection (a)(1) and the
notification requirements [timely application for reemployment] are met.” 38
U.S.C. 4312(h).
The language of section 4312(h) could hardly be clearer, but the clarity is
further buttressed by the legislative history: “Section 4312(h) is a
codification and amplification of King v. St. Vincent’s Hospital. This new section makes clear the Committee’s intent that
no ‘reasonableness’ test be applied to determine reemployment rights and that
this section prohibits consideration of timing, frequency, or duration of
service so long as it does not exceed the cumulative limitations under section
4312(c) and the servicemember has complied with requirements under sections
4312(a) and (e).” House Report No. 103-65, 1994 United States Code
Congressional & Administrative News2449,
2463.
The transition from a strategic reserve to an operational reserve was largely
complete by the time Congress enacted USERRA in 1994. In August 1990, Iraq
invaded Kuwait, and President George Herbert Walker Bush began that month
calling National Guard and Reserve personnel to active duty, the first
significant call-up of the Reserve Components since the Korean War. It was only
the rapid victory achieved by American and allied forces that limited the
burden on civilian employers during 1990-91.
Yes, the Global War on Terrorism has increased the burden on employers, but
this increased burden is certainly not unanticipated or unprecedented or
unconstitutional
I also acknowledge that we
need to address the concerns of civilian employers in order to make the TFP
work for the expected long war. Please
see “Concessions on all Sides” by Captain Ted Daywalt and myself, on pages
20-23 of the upcoming issue of The
Officer.
I invite your attention to
“Positive Investment Return” by Lieutenant General Jack Stultz (the Chief of
Army Reserve) on pages 32-34 of the upcoming issue. On page 34, General Stultz writes: “Collectively we must convince America’s
employers that our program to develop and share our human talent is good for
the nation and good for their bottom line.”
Q: I have
intentionally kept the number of employees in my small business below 15,
because my lawyer has informed me that as long as I do not hire the 15th
employee I am exempt from these burdensome federal employment laws. Does USERRA apply to very small employers
like my business?
A: Yes. Other federal
employment laws (including Title VII
of the Civil Rights Act of 1964 and the Americans With Disabilities Act) have a
15-employee threshold for applicability.
The reemployment statute has never had such a threshold. You only need one employee to be an employer
covered by this statute. See Cole v. Swint, 961 F.2d 58, 60 (5th
Cir. 1992).
Congress enacted USERRA in
1994, as a complete recodification of the Veterans’ Reemployment Rights Act
(VRRA), which was originally enacted in 1940.
USERRA’s legislative history makes clear the intent of Congress that: “This chapter [USERRA] would apply, as does
current law [the VRRA], to all employers regardless of the size of the employer
or the number of employees. [citing Cole
v. Swint].” House Rep. No. 103-65,
1994 United States Code Congressional
& Administrative News 2449, 2454.
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