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LAW REVIEW 1131
Not Everything You Do for Your Reserve
Component Is Protected by USERRA
By Captain Samuel F. Wright, JAGC, USN (Ret.)
1.1.3.3—USERRA Coverage for National Guard Service
1.3.1.2—Character and Duration of Service
Leisek v. Brightwood Corp., 278 F.3d 895
(9th Cir. 2002).
John C. Leisek was a
full-time employee of Brightwood Corporation and a member of the Oregon
National Guard. He owned a hot-air
balloon with National Guard insignia on it.
He frequently attended events around the country and used the balloon as
a recruiting and promotional tool for the National Guard. He received inactive duty training orders for
most but not all of these events.
Leisek was scheduled to
attend many events, with his balloon, during the summer of 1996. He asked his employer for leave from his
civilian job for the entire summer, and the employer denied the request. Without the employer’s permission, Leisek
absented himself from his job for the entire summer and sought reemployment at
Brightwood in September. Brightwood
refused to reemploy Leisek when he applied in September, thus effectively
firing him. The United States Court of
Appeals for the 9th Circuit held that the firing did not violate the
Uniformed Services Employment and Reemployment Rights Act (USERRA).
Leisek had National Guard
orders for some but not all of the events that he attended, with his balloon,
during the summer of 1996. He was
certainly not performing “service in the uniformed services” for the entire
summer.
USERRA is codified in
sections 4301-4335 of title 38 of the United States Code (38 U.S.C.
4301-4335). Section 4303 defines 16
terms used in this law, including the term “service in the uniformed services”
which is defined as follows: “The term
‘service in the uniformed services’ means the performance of duty on a
voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for
training, initial active duty for training, inactive duty training, full-time
National Guard duty, a period for which a person is absent from a position of
employment for the purpose of an examination to determine the fitness of the
person for any such duty, and a period for which a person is absent from a
position of employment for the purpose of performing funeral honors duty as
authorized under section 12503 of title 10 or section 115 of title 32.” 38 U.S.C. 4303(13) (emphasis supplied).
This definition is broad, but
it is not broad enough to cover activities that the individual Reserve
Component (RC) member may engage in to support his or her unit or component but
for which the member receives no compensation, not even retirement points. I am aware that many members (especially
commanding officers) engage in substantial military activities between drill
weekends and other periods of military service.
These activities are expected by the component, but that does not mean
that they are protected by USERRA. You
do not have the right to take time off from your civilian job (even time off
without pay) to do military-related activities that do not fall within USERRA’s
definition of “service in the uniformed services.”
As I explained in Law Review
0766, and other articles, you must meet five eligibility criteria in order to
have the right to reemployment following absence from a job (for a few minutes
or up to five years) to perform uniformed service:
- You must have left the job for the purpose of performing service in the
uniformed services. If the activity
that you perform during the time that you are away from work does not qualify
as “service in the uniformed services” under the USERRA definition, you do not
meet this criterion.
- You must have
given the employer prior oral or written notice.
- Your cumulative
period or periods of service, relating to the employer relationship for which
you seek reemployment, must not have exceeded five years. All involuntary service and some voluntary
service (including Reserve and National Guard training) are exempted from the
computation of the five-year limit.
- 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
reported back to work in a timely manner or have submitted a timely application
for reemployment, after release from the period of service.
It is necessary to meet all
five of these criteria in order to have the right to reemployment. Leisek failed to meet the first criterion, so
it is not necessary to determine whether he met the other four.
I realize that it is
necessary for RC members (especially those in positions of leadership) to
engage in substantial activities in support of their units and components
outside of military duty days. But those
who deal with and rely upon RC members need to understand that an RC member not
on active duty or some military status on a particular day is fundamentally
different from an active duty service member.
If you need information from an RC member not on active duty, do not call the member at his or her
civilian job. Call the member at
home, during non-work hours. Yes, I
realize that this will be inconvenient for the active duty members who would prefer
to contact the RC members during work hours.
But if we are to make the Total Force Policy work we must show some
consideration for the civilian employers of RC members and we must ensure that
RC members have USERRA protection for any military-related activity that takes
away from their civilian jobs, even for a few minutes.
Some civilian employers
objected to RC service even when such service was generally limited to one
weekend per month and two weeks of full-time service per year. More than 800,000 RC members have been called
to the colors (for many months at a time) since the terrorist attacks of
September 11, 2001. As the demands upon
RC members have increased, so have the objections of civilian employers of RC
members. If your employer is annoyed
with your military-related absences from work and is looking for an excuse to
fire you, you need to avoid giving the employer any such excuse. Do not absent yourself from work for
military-related activities that do not qualify as “service in the uniformed
services.” Do not do military activities
while on the clock in your civilian job, and do not use employer resources
(computer, telephone, etc.) for your military activities.
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