ST32-1 ROA Benefit (May 2008)
Category: 1.18-USERRA and Other Laws

New Jersey Supreme Court Upholds Rights of Reservist

By CAPT Samuel F. Wright, JAGC, USN (Ret.)
In the Matter of Michael Fidek, 76 N.J. 340, 387 A.2d 1185 (New Jersey Supreme Court 1978). Michael Fidek began his career with the New Jersey Department of Transportation on Sept. 9, 1966. Three days later, he embarked on a four-month unpaid leave of absence to perform initial active duty training in the U.S. Army Reserve. He completed his military training and returned to work at his civilian job on Jan. 16, 1967.

As I explained in Law Review 104, and other articles, Congress originally enacted the federal reemployment statute in 1940, as part of the Selective Training and Service Act. The reemployment statute has applied to the federal government and to private employers since 1940. In 1974, as part of the Vietnam Era Veterans Readjustment Assistance Act, Congress amended the reemployment statute to make it apply to state and local governments as well. This 1974 amendment was not retroactive, so the federal reemployment statute did not apply to Mr. Fidek’s 196667 period of military training in the Army Reserve.

In the mid-1970s, Mr. Fidek worked for the New Jersey Department of Transportation as a right-of-way negotiator. The negotiator position was abolished, and Mr. Fidek was subjected to an involuntary transfer to another part of New Jersey. Mr. Fidek had not been accorded state seniority credit for the four months of Army Reserve training that began almost immediately after he began his state career in September 1966. If he had been credited with state seniority for that four-month period, he would have had enough seniority to bump into another Department of Transportation position at the same location, and thus to avoid the involuntary transfer.

The federal reemployment statute did not apply to Mr. Fidek’s 196667 military training period, but the New Jersey Supreme Court held that he was entitled to that credit under New Jersey Statutes section 38:23-4. “We are satisfied that the [federal] statute is not retroactive. The result we reach today is, however, consonant with the federal policy.” Fidek, 387 A.2d at 1186.

Fidek is an interesting and important case, illustrating the relationship between the federal reemployment statute and state statutes like section 38:23-4. The federal statute is a floor and not a ceiling. If the federal statute does not apply, for whatever reason, you must also look to state statutes.

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