Number 56, November 2002:
USERRA REVIEW

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I work for a major corporation that is going through hard times. Several thousand of my co-workers were laid off last year. It is likely there will be another round of layoffs soon and that I will be included. I have been notified by the commanding officer of my Marine Corps Reserve unit that it is likely I will soon be called to active duty, and I have relayed that information to my supervisor at work. Does my likely impending activation immunize me from being laid off at work?

A: No. The possibility (or even the certainty) that you will be called to active duty does not immunize you from a layoff that would have applied to you in any case, even if you had not been a member of a Reserve component of the armed forces. [See Law Review 39.] On the other hand, if the employer engages in a pretext to get rid of an employee who is likely to be recalled, that would be unlawful. [See Law Review 35.]

The relevant question is what would have happened to you, at your civilian job, even if you were not a Reservist. The Uniformed Services Employment and Reemployment Rights Act (USERRA) does not exempt you from bad things that would have happened anyway. Under 38 U.S.C. 4311, USERRA’s anti-discrimination provision, it is unlawful for the employer to fire you or lay you off because of your Marine Corps Reserve affiliation and service. [See Law Review 11.] You must show at least some evidence that your Reserve affiliation, performance of service, obligation or application to perform future service were motivating factors (not necessarily the sole reason) for the employer’s decision to take some adverse action against you.

Q: What if I am laid off in November and called to active duty in December?

A: “Laying off” is not synonymous with “firing.” If you are laid off, the concept is that the employer is letting you go because of a reduced need for employees, not because of any dissatisfaction with your work. If you are laid off, the idea is that it is at least possible that you may be recalled to work, if and when business picks up again. For example, the major automobile companies lay people off and bring them back from layoff every month.
If you have been laid off, with at least a possibility of being recalled by the employer, you are still an “employee” for USERRA purposes. If you leave that status to perform service in the uniformed services, you can have re-employment rights. Of course, you must still meet all the USERRA eligibility criteria. [See Law Reviews 4–7.] This includes giving prior notice to your employer, before beginning to perform the service. [See Law Reviews 5 and 35.]

Q: If I am not going to work anyway, because I have been laid off, why should I notify the employer that I have been recalled to active duty?

A: Because prior notice is one of the eligibility criteria that you must meet in order to have re-employment rights. [See Law Reviews 5 and 31.] The fact that you have been laid off does not exempt you from any of the eligibility criteria. I suggest that you send a certified letter to the employer’s personnel office, and retain a copy of that letter and the returned receipt, showing delivery. It only costs about $3 to send a certified letter. This is a small price to pay to protect whatever rights you may have.

Q: What if I am recalled to active duty in December and then my civilian job is abolished in January?

A: Under USERRA’s “escalator principle,” you are entitled to be treated, upon return to your civilian job, as if you had been continuously employed, for seniority and pension purposes. (Of course, this assumes that you meet USERRA’s eligibility criteria.) The “escalator” does not always go up. If you would have lost your job in January 2003, even if you had not been on active duty at the time, you may be entitled only to “re-employment” in a layoff status. [See Law Reviews 8 and 39.]

The fact that your job was abolished in January 2003, while you were on active duty, does not necessarily mean that you are entitled only to reinstatement on a layoff list. Perhaps you would have been able to exercise “bumping” rights to avoid layoff at the time the job was abolished. Perhaps you would have been recalled to work in July 2003. We must determine what would have happened to your job if you had not been on active duty at the time. As you can imagine, these determinations are sometimes complex and controversial.

Q: I may volunteer for service, instead of waiting for an involuntary activation that is likely but by no means certain. Will I have re-employment rights under USERRA if I volunteer?
A: Yes. As explained in Law Review 30, USERRA applies to voluntary as well as involuntary service. If you are involuntarily called, your period of involuntary service will be exempted from USERRA’s five-year cumulative limit on the duration of service (relating to that particular civilian employer). If you volunteer, your service will be exempted from the five-year limit only if that voluntary service fits within one of USERRA’s exemptions from the five-year limit. [See Law Reviews 6 and 42.]

Note: I have included this member’s questions, and my answers, because this article serves as a review of the Law Review articles that are already available on ROA’s Web site (www.roa.org). Click on “Legislative Affairs” and then on “Law Review Archive” at the bottom of the screen. As of 7 September 2002, when I wrote this article, we have 46 Law Review articles on the Web site, and 28 of them are about USERRA.

I am willing to assist ROA members (as well as enlisted Reservists who are not eligible for membership) with problems of this kind. However, I don’t want to try to duplicate the efforts of the two government agencies that were established, and funded with our tax dollars, to assist with respect to USERRA rights. The Employer Support of the Guard and Reserve (ESGR) Committee (part of the Department of Defense) has a network of volunteers all over the country, specifically recruited and trained to help Reservists with civilian job problems. Responsibility for enforcing USERRA has been assigned to the Veterans’ Employment and Training Service (VETS), which is part of the Department of Labor. You can reach ESGR at 1-800-336-4590. If necessary, the ESGR can put you in touch with VETS.

If you have USERRA or related questions, please first check ROA’s Web site, as I may have already answered your question. Then, call ESGR and check the ESGR Web site (www.esgr.org). If you still need my help or advice, you may contact me at ROA. The best way to reach me is by e-mail, swright@roa.org. You can also leave a message at 1-800-809-9448, extension 753. I will respond, but not necessarily the same day. Please understand that I am at ROA only intermittently, and as a volunteer.