LAW REVIEW 1136

Five-Year-Limit Primer: Your job protection is up to you.

By Captain Samuel F. Wright, JAGC, USN (Ret.)

1.3.1.2 -- Character & Duration of Service

Q: I am a Marine Corps Reserve o­fficer and a member of ROA. When not on active duty, I work as an airline pilot. Since the terrorist attacks of Sept. 11, 2001, I have been away from my civilian job for almost seven years of active duty—some voluntary and some involuntary. I have been trying to ‑figure out which of my active-duty periods count toward my ‑five-year limit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), and which periods are exempt. This is too complicated. Why should this burden be placed on the individual reservist? Somebody should take on this responsibility for the individual reservist. What about the civilian employer? What about the Marine Corps Reserve? What about the National Committee for Employer Support of the Guard and Reserve (ESGR)? What about the Department of Labor (DoL)? Can’t these organizations take the burden off the individual reservist?

A: Nobody but you can protect your job. If you want to preserve your right to reemployment under USERRA, it is incumbent upon you to ensure that you meet USERRA eligibility criteria, including, but not limited to, the five-year limit. As I explained in Law Review 0766, and other articles, you must meet five criteria to have the right to reemployment:

1. You must have left a civilian position of employment for the purpose of performing voluntary or involuntary service in the uniformed services.

2. You must have given the employer prior oral or written notice that you would be leaving for the purpose of service.

3. Your cumulative period, or periods, of uniformed service, relating to the employer relationship for which you seek reemployment, must not have exceeded five years. Not all duty counts toward the five-year limit.

4. You must have been released from the period of service without having received a punitive (court martial) or other-than-honorable discharge.

5. You must have made a timely application for reemployment after release from the period of service.

You must meet these criteria with respect to each period of service, whether for a drill weekend or five years of voluntary active duty. You must be prepared to document that you meet the criteria. I suggest that you carefully dot all the I’s and cross all the T’s. Your civilian employer does not necessarily understand all the nuances of USERRA, and some employers have no knowledge of the law whatsoever. Moreover, the employer is not necessarily on your side. Even in the “good old days” when Reserve Component service was generally limited to one weekend per month and two weeks of annual training, some employers strenuously objected to the burden of employing a National Guard or Reserve member. Now that we are talking about repeated periods of voluntary or involuntary service, often for months at a time, some employers are willing to spend big bucks to hire lawyers to help them get out from under USERRA requirements. If you fail to meet even one of the five criteria, you do not have the legal right to reemployment upon release from service. I strongly suggest that you not rely on the employer’s goodwill. Don’t assume that the employer will reemploy you.

If you tell the employer that you will be gone for a year of military service and then you extend for a second year, it is essential that you inform the employer of the extension. I suggest you do so by certified mail, and retain a copy of the letter and the evidence that the employer received it. But don’t expect the employer to sign on to your assertion that the first year or the second year is exempt from the ‑five-year limit.

You must meet all five of the eligibility criteria to have the right to reemployment. That means that you must be released from the period of service and then apply for reemployment. When you show up at the civilian place of employment with your form DD-214 in hand, the employer then needs to determine if you are within the ‑five-year limit and if you meet the other four criteria. Until you are ready to return to work, the employer need not make—and probably will not make—a determination about the fi­ve-year limit or the other criteria.

Even if the employer says something to the effect that your service is exempt from the five-year limit, an earlier employer statement is not binding on the employer. When you finally leave active duty and apply for reemployment—and after the employer is “lawyered up”—the employer may contest your assertion that a period of service does not count toward the limit. In the ­final analysis, if push comes to shove, it may be up to a court to determine whether you are within or outside the five-year limit with respect to that employer relationship.

Similarly, you cannot rely on the Marine Corps Reserve to compute the fi­ve-year limit for you. The folks at the personnel office may not even know the meaning of the acronym USERRA. They certainly don’t know the details of the fi­ve-year limit. And the Marine Corps may not know when you started to work for your present employer. ESGR and the DOL generally don’t come into the picture until you have an actual claim for reemployment, which the employer has denied.

Law Review 201: “Have I Exceeded the Five-Year Limit?” goes into great detail as to how the fi­ve-year limit is computed— what counts and what does not count. The shorthand version is that all involuntary service and some voluntary service are exempted from the computation of the ­five-year limit. It is incumbent on you to determine how much of the ­five-year limit you have already used and how much “headroom” you have left. Before you agree to a new voluntary period of active duty or a voluntary extension of your active duty, be sure that the new period or extension does not put you over the five-year limit.

Q: Some of my military orders contain a paragraph explicitly stating that the duty performed under the order is exempt from the computation of the fi­ve-year limit under USERRA. Can I rely on that paragraph?

A: Not necessarily. As I explain in detail in Law Review 201, five of the eight exemptions require the “secretary concerned” to make a determination and written certification. The term secretary concerned refers to the service secretary, such as the secretary of the Navy. A 1998 Department of Defense instruction provides that the service secretary can delegate this responsibility, but not below the “assistant secretary” level. These determinations are normally made by the assistant secretary of the Navy for Manpower and Reserve Affairs, or by similar officials in the Department of the Army or the Department of the Air Force, or by the Commandant of the Coast Guard for that service.

I am concerned about many of the military orders that I have read. Instead of a general statement to the effect that the period is exempt from the fi­ve-year limit, I want to see a specifi­c citation to the written determination by the service secretary or assistant secretary. If the question of your right to reemployment must be litigated—and if the question comes down to whether a particular period of service is exempt from the fi­ve-year limit—the court will likely demand to see evidence that the proper official has made the determination.

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