Number 45, June 2002:
USERRA and SSCRA Coverage For National Guard Members

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I am a first lieutenant in the Army National Guard and a member of ROA. I have been recalled to active duty, under state orders, and I am in charge of a detachment of recalled National Guard members providing security at a civilian airport. Most of the members of the detachment, myself included, left civilian jobs when we were called up for this service. One detachment member has been told by her employer that she will not have the right to return to her civilian job because her orders are state orders, not federal orders. Is the employer correct?

A: No. If this unit member meets the eligibility criteria under the Uniformed Services Employment and Reemployment Rights Act (USERRA), she will have the right to re-employment in her pre-service civilian job (with the seniority that she would have accrued if she had been continuously employed). The USERRA eligibility criteria are set forth in detail in “Law Reviews 5–7.”

USERRA is codified in title 38, United States Code, sections 4301-4333 (38 U.S.C. 4301-4333). Section 4303 defines 16 terms used in USERRA, including the term “service in the uniformed services.” That term 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 [emphasis added], a period for which a person is absent from a position of employment for the purpose of an examination to determine fitness of the person to perform 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 by section 12503 of title 10 or section 115 of title 32.” [38 U.S.C. 4303(13)]

The term “full-time National Guard duty” is not defined in USERRA, but it is defined in 10 U.S.C. 101(d)(5), as follows: “The term ‘full-time National Guard duty’ means training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the Air National Guard of the United States in the member’s status as a member of the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 504, or 505 of title 32 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States.”

It is my understanding that the National Guard members who are performing airport security duty have received orders that cite 32 U.S.C. 502(f). (Please confirm this by reviewing your own orders and the orders received by members of your detachment.) Because your orders cite one of the enumerated title 32 sections, your current service qualifies as “full-time National Guard duty” and thus as “service in the uniformed services.” You and the members of your detachment have re-employment rights under USERRA.

Q: Last summer, the governor of our state of Washington called several of us to state active duty to fight forest fires. Do we have USERRA rights for that period of service?

A: No. Your orders for that forest fire duty did not cite one of the enumerated title 32 sections. That duty did not meet the 10 U.S.C. 101(d)(5) definition of “full-time National Guard duty” or the USERRA definition of “service in the uniformed services.” Fortunately, the state of Washington has an excellent state law protecting National Guard members under these circumstances.

Q: One of the members of my airport detachment is still complaining about what happened to him last summer. When the governor of Washington called him up to fight forest fires, he left his civilian job at a small convenience store just across the border, in Oregon. When he was released from that period of state duty, the convenience store owner refused to re-instate him in his civilian job. The storeowner insists that he is under no obligation to take this young man back because his duty was state, not federal. This young man was still unemployed when he was called up for the current period of airport security duty.

A: It is most unfortunate that your detachment member has “fallen through the cracks.” He has no protection under federal law (USERRA) because the forest fire duty was state duty and did not meet the statutory definition of “full-time National Guard duty.” The Washington state law does not protect him because your state’s law cannot be applied across the state line in Oregon. The Oregon law does not protect him because that law, by its own terms, only applies to “a member of the National Guard of this state.”

The Washington law applies to “a member of the National Guard of this or any other state.” We need to get Oregon to return the favor, and we need to get all the states to emulate Washington’s law. Until that happens, your detachment member and others similarly situated are out of luck.

Q: Another detachment member is in very serious financial difficulty. Even before he was recalled to active duty for the airport security task, he was barely making his monthly payments on large credit card debts. When he was recalled to active duty, as an E-2, his pay was cut in half, as compared to what he had been making at his civilian job. His financial situation has gone from bad to worse.

I arranged for a National Guard judge advocate to help this detachment member. The judge advocate helped him out a great deal by drafting letters to the eight credit card companies requesting that the interest rate be reduced to 6 percent, in accordance with the Soldiers’ and Sailors’ Civil Relief Act (SSCRA). Seven of the eight companies acceded to the request, but the other company has refused. That company insists that it is under no obligation to reduce this member’s interest rate because the SSCRA does not apply to state duty. Is the company correct?

A: Unfortunately, yes. Although USERRA applies to some (but not all) state duty, the SSCRA does not apply to state duty under any circumstances. After 11 September, an effort was made in Congress to amend the SSCRA to make it apply to state duty performed by National Guard members. That effort has not yet succeeded. ROA is continuing its effort to broaden the SSCRA in this and other important ways. ROA

Captain Wright was employed as an attorney for DoL for ten years. He was largely responsible for drafting USERRA, along with one other DoL attorney. He also helped to write the successful appellate briefs for the veterans in both the Imel and the Akers cases. Most recently, he was on active duty for 71 days (May–July 2001), including 40 days in Bahrain. Please see his July 2001 “Law Review” article.
You may write to Captain Wright at ROA, or you can reach him by e-mail at samwright50@ yahoo.com.