LAW REVIEW 1125
Furloughs and the Five-Year Limit
By Captain Samuel F. Wright, JAGC, USN (Ret.)
Applicability to Employees Who Have Been Laid Off
18.104.22.168—Left Job for
Service and Gave Prior Notice
Duration of Service
Q: I served on active duty for 11.5 years until
released in December 2000. The next
month, I started work for a major airline as a rookie pilot. I was a junior first officer (co-pilot) when
the terrorist attacks occurred on Sept. 11, 2001. As a result of the attacks, the air travel
industry took a serious downturn.
Because there was a reduced demand for seats, the airline reduced the
number of flights, which in turn reduced the need for pilots. In accordance with the collective bargaining
agreement between my union and the airline, layoffs or “furloughs” (as they are
called in the airline business) are based strictly on seniority, and so are
recalls from furlough. I was very
junior, and I was among the first pilots furloughed. I was told that the furlough would likely
last for several years.
I returned to active duty
in January 2002 and I am still on active duty.
I expect to leave active duty, by retirement, in the fall of 2011. I want to return to work for the airline.
In January 2007, my number
for recall from furlough finally came up.
I received a certified letter from the airline, inviting me to return to
work. I responded by certified letter,
informing the airline that I wished to respond affirmatively to the recall
notice but that I was on active duty and was unable to get off active duty
immediately. Pursuant to my request, the
airline put me on a “military leave” status in January 2007.
I have read your Law
Review 0766, and I think that I will meet the five eligibility criteria for
reemployment under USERRA, with the possible exception of the five-year
limit. I gave the employer written notice
by certified mail when I received a recall notice from the airline. I expect to leave active duty without a
punitive or other-than-honorable discharge, and I plan to apply for
reemployment with the airline the day after I leave active duty.
The issue is the five-year
limit. I think that my limit should be
measured from January 2007, when I received the airline’s recall notice. I have inquired of the airline’s personnel office,
and they tell me that my five-year limit is measured from January 2002, when I
returned to active duty. Is January 2007
the start point for the computation of my five-year limit? Or is it January 2002?
decided to write this article because I have received this question, in many
variations, from a large number of reservists, especially in the airline
industry but also in some other industries.
I invite your attention to
section 4312(a) of USERRA: “Subject to
subsections (b), (c), and (d) and to section 4304, any person whose absence
from a position of employment is necessitated by reason of service in the
uniformed services shall be entitled to reemployment rights and benefits
and other employment benefits of this chapter if [eligibility criteria then set
forth].” 38 U.S.C. 4312(a) (emphasis
In the period between January
2002 and January 2007, your absence from your job at the airline was not
necessitated by your uniformed service.
During that period of time, your absence from the civilian job was
necessitated by the furlough.
Accordingly, it is reasonable to argue that your five-year limit should
be measured from January 2007, when you received the airline’s recall
notice. But I acknowledge that this
issue is not free from doubt.
I have also reviewed USERRA’s
legislative history, the Department of Labor USERRA regulations, and the case
law under USERRA and the prior reemployment statute. I do not find anything that touches upon this
very specific question.
USERRA’s legislative history
does contain the following instructive paragraph: “The provisions of Federal law providing
members of the uniformed services with employment and reemployment rights,
protections against employment-related discrimination, and the protection of
certain other rights and benefits have been eminently successful for over fifty
years. Therefore, the Committee [House
Committee on Veterans’ Affairs] wishes to stress that the extensive body of
case law that has evolved over that period, to the extent that it is consistent
with the provisions of this Act, remains in full force and effect in
interpreting these provisions. This is
particularly true of the basic principle established by the Supreme Court that
the Act is to be ‘liberally construed.’ See
Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946); Alabama
Power Co. v. Davis, 431 U.S. 581, 584 (1977).” House Report No. 103-65, 1994 United
States Code Congressional & Administrative News 2449, 2452.
Applying USERRA liberally for
the benefit of those who serve our country in uniform, like you, I think that
it is fair to argue that your five-year limit should be measured from January
2007 rather than January 2002.
Q: Before I returned to active duty in January
2002, I informed the airline’s chief pilot by telephone and also by
e-mail. I have been searching my e-mail,
but I cannot find a copy of the e-mail that I sent more than nine years ago,
and the chief pilot died in 2007. The
airline’s personnel office insists that there is no record that I notified the
airline before I went on active duty in 2002, and that this lack of notice is
an additional reason to deny my upcoming application for reemployment. What do you think?
section 4312(a)(1) of USERRA, the notice to the employer, of impending
uniformed service, can be “written or verbal.”
38 U.S.C. 4312(a)(1). In a civil
case, the standard is “preponderance of the evidence” rather than “beyond a
reasonable doubt” as in a criminal case.
If you testify under oath that you gave prior notice to the chief pilot
by telephone and by e-mail, and if the judge or jury credits your testimony,
you can prevail on the notice issue.
Moreover, you can reasonably
argue that prior notice was not required in January 2002 because the service
did not cause you to be absent from your civilian employment. You were already absent, because you had been
It would have cost you about
$3 to send a certified letter to the airline in January 2002. In retrospect, it would have been better if
you had sent such a letter, and if you had retained a copy of the letter, along
with the United States Postal Service paperwork showing that you sent the
letter and that the airline received it.
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