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Understanding The Rights and Obligations Of Your Military Reservist Employees Part 1 of 2

By Karl G. Nelson
May 01, 2003

With the recent conflict in Iraq and the country's ongoing focus on homeland security, many employers find themselves confronting for the first time a significant body of employment rights and obligations imposed by the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA). 38 U.S.C. '4301, et seq. (2000). As of April 1, 2003, the Department of Labor estimated that 220,000 reservists and National Guard members were on active duty, and that roughly 280,000 reservists and Guard members had been called up since September 11, 2001, surpassing the total number called to active duty for the first Persian Gulf War. See “USERRA Legal Inquiries Up Regarding Jobs; DOL Says Possible Rise in Claims Expected,” Daily Lab. Rep, (BNA) No. 63, at A-12 (Apr. 2, 2003), available at http://pubs.bna.com/ip/BNA/dlr.nsf/is/a0a6r0y9t7. Not surprisingly, the number of complaints filed under USERRA has increased by roughly 30% since 2001, and Department of Labor officials anticipate a further surge in complaints as activated reservists are released from duty and begin to return to the workforce. Id. Because of the value of their contribution to the nation's defense, reservists and National Guard members are among the most highly protected of employee groups. Particularly as these workers begin to return from active duty, law firm employers must be familiar with the substantial protections USERRA affords service men and women.

Background

USERRA was enacted following the first Persian Gulf War to encourage noncareer military service by providing enhanced employment rights to those who perform duty in the “uniformed services,” (38 U.S.C. '4301(a)) including the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service Commissioned Corps (as well as their reserve components), the Army National Guard, and the Air National Guard. See 38 U.S.C. '4303(13), (16). The statute provides protections to employees on military leave, guarantees reemployment rights for such individuals following their military service and prohibits discrimination against military personnel. Importantly, USERRA applies to all employees, regardless of their length of employment service or number of hours worked.

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