Part-time military

A Legal View: Law provides protections for those who are called into the armed services

The ongoing operations in Iraq have demonstrated the extent to which the Defense Department has become dependent on reserve and National Guard forces to augment the full-time military force. Currently, there are approximately 1.2 million individual reservists, amounting to 46.8 percent of the total military force.

As of May 14, 2003, nearly 220,000 reservists were mobilized into active service, including 145,234 from the Army National Guard and Army Reserve, 11,923 from the Naval Reserve, 36,831 from the Air National Guard and Air Force Reserve, 21,258 from the Marine Corps Reserve, and 4,405 from the Coast Guard Reserve.

Moreover, approximately 70,000 of the Army reservists who were mobilized were actively engaged in operations Iraqi Freedom, Enduring Freedom and Noble Eagle.

One of the things that makes it feasible to incorporate large numbers of reservists and National Guard members into the total military force is a set of laws that protect those individuals' rights to their civilian jobs while they are serving active duty. The primary law in this area is the Uniformed Services Employment and Re-employment Rights Act.

Congress passed USERRA in 1994 on the heels of Operation Desert Storm, America's last engagement with Iraq, to clarify, simplify and strengthen the prior veteran employment protection laws. The changes primarily shifted the burden of proof in most disputed cases from the aggrieved employee to the employer.

In general, under USERRA, an employee's membership or obligation for service in the uniformed military may not be a motivating factor in any adverse employment action unless the employer can prove that the same action would have been taken in the absence of the employee's military connection.

Under the law, employers have a duty in almost all cases to re-employ service members following their active-duty commitment, provided that employees give advance notice about their military service and properly apply for reinstatement with employers upon their return.

Moreover, employers ordinarily must credit returning employees for active-duty time for purposes of seniority, pay raises and other benefits, calculating as though there had been no break in employment.

Furthermore, an employer cannot compel an employee to use accrued vacation or leave time during military service commitments. In most cases, employees must be given the option of leave without pay for those periods.

The vast majority of employers respect and support their employees' participation in the reserves and National Guard, and a federal law is unnecessary to require employers to accommodate the time commitments associated with such service. Even so, litigation under USERRA is surprisingly common. Fortunately for the affected employees, and for all of us who depend on the U.S. military for our safety, USERRA is available for those who need it.

Peckinpaugh is senior counsel for Computer Sciences Corp. in Reston, Va. This column represents his personal views.

RELATED INFO

Materials discussed in this column include:

Uniformed Services Employment and Reemployment Rights Act

38 U.S.C. : 4301-33

National Guard and Reserve Mobilized as of May 14, 2003

U.S. Army Reserve Online

U.S. Department of Defense, "Reserves 101"

Case law: Jordan v. Air Products & Chemicals Inc., 225 F. Supp. 2d 1206 (C.D. Cal. 2002); Robinson v. Morris Moore Chevrolet-Buick Inc., 974 F. Supp. 571 (E.D. Tex. 1997); Novak v. Mackintosh, 937 F. Supp. 873 (D.S.D. 1996); Graham v. Hall-McMillen Co., 925 F. Supp. 437 (N.D. Miss. 1996)

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