The Uniformed Services Employment and Reemployment Rights Act of 1994

[Lieutenant Colonel H. Craig Manson]{.smallcaps}[^1]

An indelible piece of American iconography is the image of the
colonial-era farmer laying down his hoe to take up arms in defense of
liberty, then returning to his fields when freedom had been secured. But
this image is more than a hazy bit of folklore or exaggerated civil
mythology. It is, in fact, emblematic of the way Americans have fought
virtually every major conflict that threatened their homeland. Noncareer
volunteers and conscripts, along with on-call reservists, have been
essential to the security of America for over 350 years.

The concept of citizen-soldier or citizen-airman is alive and well in
twenty-first century America. The United States has relied on an
all-volunteer force for more than twenty-five years. In the last decade,
as the Cold War ended, reliance on the reserve components to perform
"real world" missions has increased. Total Force integration is such a
reality that the Air Force cannot do without its Air Reserve Components.
That integration will be key to the air expeditionary force concept
currently being implemented in the Air Force.[^2]

The Air National Guard, for example, has 100 percent of the Air Force's
fighter-interceptor capability, 44 percent of the tactical airlift
forces, 43 percent of the air refueling capability, 28 percent of the
rescue assets, and more than two-thirds of the combat communications
resources.[^3] The Air Force Reserve Command has three numbered air
forces with thirty-five flying wings and approximately 74,250
personnel.[^4]

The current state of national defense policy has resulted in a smaller
force tasked by a tempo of operations probably greater than that during
most of the Cold War. So once again, the proverbial farmer is leaving
his field to take up the cause of liberty. But, what if there was no
field for him to return to? Would he be as eager to go, especially (to
mix metaphors), if the wolf is on somebody else's doorstep?

Increased utilization of reserve components necessarily affects
businesses and communities almost as an additional tax. Thus, conflicts
between service member/employees and their employers are inevitable. It
becomes essential to have a mechanism to resolve these conflicts. This
article describes the background and essential provisions of
reemployment rights legislation which is the mechanism for resolving
employer/employee conflicts over absences for military duties. It is
imperative to the success of our current modes of operation that legal
assistance attorneys, both on active duty and in the reserve components,
be prepared to give accurate advice on reemployment rights.

### I. THE HISTORY OF REEMPLOYMENT LEGISLATION

Reemployment legislation has existed continuously for nearly sixty
years. The legislation has served to support different aspects of
national defense policy over the years. In an unusually prescient
legislative action, Congress first enacted reemployment rights for
returning service members just before the outbreak of World War II. As
the clouds of war gathered, Congress foresaw the need to train and
induct a substantial number of civilians into the small standing
military establishment. If no war occurred, these individuals would
return to their usual livelihoods after training. If war did indeed
break out, they would nonetheless go back to their jobs at the
conclusion of their service. The new reemployment provisions, designed
to facilitate the return of the service member to their civilian jobs,
were part of the Selective Training and Service Act of 1940.[^5] The key
substantive provisions of that early legislation remain virtually
unchanged today.

After the war, in 1948, Congress reenacted the employment protection
legislation as part of the Military Selective Service Act.[^6] This
time, the purpose was to support the conscription-based force management
policies that existed for the first twenty-five years of the Cold
War.[^7] The typical draftee served two or three years and then returned
to civilian life. Without legal protection against employment
discrimination, the draft may have become even more unpopular with
"Middle America" a lot sooner than it eventually did.

Congress next passed reemployment legislation at the end of the Vietnam
conflict.[^8] Large numbers of service members were being separated as
involvement in Southeast Asia came to an end. Additionally, the draft
had ended and the nation was transitioning to a peacetime all-volunteer
force. Employment protection was important in luring the potential
one-term volunteer (to replace the draftee) and to induce separating
members to continue to serve in the reserve forces.[^9]

Between major reenactments, Congress amended the reemployment
legislation numerous times in bills that concerned veterans' affairs or
military personnel policy or fiscal authorizations. Although there was
never a formal name to the reemployment provisions, prior to 1994 this
legislation was popularly known as the Veterans' Reemployment Rights
(VRR) law.[^10] A more formal name was used for the present reemployment
rights legislation, the Uniformed Services Employment and Re-employment
Rights Act of 1994 (USERRA),[^11] and it passage reflected yet another
shift in national defense policy on this issue. The Cold War had ended
and another drawdown of active duty forces had begun. The nation would
place greater reliance on its reserve forces. These reserve forces would
look different from the reserve forces of the Cold War era. During the
Cold War, the reserve components were, for the most part, forces in
reserve as part of a planned redundancy with active duty forces.[^12]
After the fall of the Berlin Wall,[^13] greater emphasis was placed on
reserve component roles and missions as part of, but not as an adjunct
to, the "Total Force."[^14] Indeed, as one military official put it, the
reserve components have a "full-time commitment to America and to
America's military."[^15] Additionally, the United States, in this
post-Cold War era, faces different security threats and different
geographic positioning in that not nearly as many military personnel are
forward-based in foreign countries. The consequence of these facts is
that both active and reserve components are called on to deploy for
varying and, often, unpredictable lengths of time. This places
significant strain on active duty and reserve members and on their
families. Moreover, for the reserve component members, there is the
added pressure of maintaining their civilian employment.

The Gulf War was the first post-Cold War opportunity to test America's
new defense posture and, consequently, the first significant chance to
see its effects on the personnel. Over 250,000 members of reserve
components served on active duty during the Gulf War.[^16] This brought
the war home to "Main Street America" like no other military involvement
since Vietnam.

### II. THE UNIFORMED SERVICE EMPLOYMENT 

**AND RE-EMPLOYMENT RIGHTS ACT**

USERRA was enacted with congressional mindfulness of the new realities
of military policy and strategy in the post-Cold War era. Congress
explicitly declared that the purpose of the statute is "to encourage
noncareer service . . . by eliminating or minimizing the disadvantages
to civilian careers and employment \[and to\] minimize the disruption to
the lives of people serving in the uniformed services as well to their
fellow employees, their employers, and their communities."[^17] Congress
also sought to prohibit discrimination against individuals because of
their service in the military.[^18] To insure success in this regard,
Congress borrowed several concepts from other federal employment
discrimination statutes with which most employers are familiar. USERRA
also represents a simplification of the original veterans' reemployment
legislation that, over the years, had become less comprehensible as
various amendments were added. To that end, the Secretary of Defense has
promulgated regulations that interpret certain provisions of
USERRA.[^19] In an effort to achieve its goals, Congress separated the
statute into three major elements: (1) a prohibition on employment
discrimination against service members, former service members, or
prospective service members; (2) reemployment rights for persons absent
from employment because of military service; and (3) preservation of
benefits for persons absent from employment because of military service.

**A. Who is Covered by USERRA?**

Every employer in the United States, including the federal and state
governments, is subject to USERRA by the express terms of the
statute.[^20] Coverage in this regard is so extensive that, unlike
certain other federal employment statutes, USERRA has no exception for
small businesses.[^21] []{.mark}

The application of this legislation to employees is quite clear. An
employee or an applicant for employment[^22] may claim protection under
USERRA if the employee "is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an obligation to
perform service in a uniformed service."[^23] Additionally, however, if
the employee has been separated from the service, that separation must
not have been as a result of a punitive discharge or a discharge under
other than honorable conditions.[^24]

B. Employment Discrimination Against Service Members, Former Service
Members, and Prospective Service Members

USERRA provides that an employee or applicant for employment cannot be
denied employment, reemployment, retention in employment, promotion, or
any benefit of employment on the basis of having served in the
military.[^25] This antidiscrimination provision, section 4311, applies
to former active duty members, as well as members and former members of
the Guard and Reserve.[^26] It also applies to persons who are not
military members or former military members, but who have applied for
appointment or enlistment in the military.[^27] Finally, by its plain
language, section 4311 bars employment discrimination against active
duty members who seek off-duty employment.[^28] Unlike the reemployment
rights provision, the antidiscrimination provision covers employees who
hold or seek temporary positions with civilian employers.[^29] Given the
broad application of this legislation, it is not surprising that USERRA
is not limited to merely one type of discrimination. To the contrary,
USERRA's protections preclude all forms of discrimination common in
today's workplace.

A person suffers one type of unlawful discrimination under USERRA if the
person's military membership or prospective military membership is "a
motivating factor" in an adverse employment action,[^30] unless the
employer can prove that the adverse action would have been taken even in
the absence of the military membership.[^31] The motivating factor
standard is a concept taken from Title VII mixed motive
jurisprudence.[^32] Though no cases have yet been decided concerning the
motivating factor language under USERRA, the courts will likely apply
Title VII case law to this provision. Under Title VII, the employer must
show by a preponderance of evidence that the adverse action would have
been taken even absent the impermissible motive.[^33] To the extent and
employer is unable to make such a showing, the employee would probably
prevail on this theory of discrimination.

Another aspect of the anti-discrimination provision is the retaliation
or whistleblower clause. An employer is prohibited from taking adverse
action against a person for exercising rights under USERRA or
testifying, assisting, or participating in any proceeding or
investigation under USERRA.[^34] Like other provisions, this is new to
veterans' employment law and has been copied from other federal
employment statutes.[^35] This provision protects employees who may not
themselves have any affiliation with the military, but who may have
complained or assisted another employee with that person's USERRA
issues.[^36]

Although not specifically addressed in the statute, "military status
harassment" is another conceivable form of discrimination arguably
covered under USERRA. Indeed, the Merit Systems Protection Board (MSPB),
which adjudicates cases involving federal employees under USERRA,[^37]
has made this determination. In *Petersen v. Department of
Interior*,[^38] the Board considered the complaint of a park ranger who
alleged that the National Park Service had engaged in harassment against
him because of his past military service. A central issue was whether
the Board had jurisdiction of a claim of harassment. An administrative
law judge held that freedom from harassment is not a "benefit of
employment" within the meaning of USERRA and therefore the Board had no
jurisdiction over the complaint.[^39] Returning the matter to the
administrative law judge, the Board stated that Congress intended the
statute to be construed broadly.[^40] The Board examined cases
construing other federal anti-discrimination statutes and found
harassment to be encompassed within the ambit of discrimination under
those statutes.[^41] The Board borrowed the Title VII formulation of
harassment: that is, to state a claim, the harassment must be
"sufficiently pervasive to alter the conditions of employment and create
an abusive working environment."[^42] Thus, the Board concluded that
Congress, in prohibiting discrimination against service members and
former service members under USERRA, intended for the statute to cover
harassment claims.[^43]

### C. Reemployment Rights Under USERRA

A person who is absent from his or her civilian employment because of
military service is generally entitled to be reemployed by his or her
employer.[^44] The reemployment rights provisions apply to individuals
who leave employment to enter extended active duty in a Regular
component of the armed forces, to Reserve and Guard members who perform
active duty, active duty for training, and inactive duty training, and
persons assigned to full-time National Guard duty.[^45] Air Reserve
Technicians[^46] and National Guard technicians[^47] are also
covered.[^48]

The statute does, however, place some responsibility on the service
member/employee to preserve reemployment rights. The employee must have
given advance notice of the military service to the employer.[^49] This
notice need not be writing; indeed, no particular form of notice is
specified by the statute.[^50] An appropriate officer of the employee's
military service may also give the notice.[^51] The term *appropriate
officer* includes commissioned officers, warrant officers, and
non-commissioned officers.[^52] Notice is not required if precluded by
military necessity or if impossible or unreasonable under the
circumstances.[^53] *Military necessity* means that a mission,
operation, or exercise is classified, or may be compromised or otherwise
adversely affected if made public.[^54] Notice is *impossible* or
*unreasonable* when the employer or employer's representative is
unavailable to receive notice, or the employee has been given
forty-eight hours or less notice from competent military authority.[^55]
The Assistant Secretary of Defense for Reserve Affairs may also
determine that other circumstances make or made notice impossible or
unreasonable.[^56]

An employee who has been absent for military service must report back
for work or submit an application for reemployment at the conclusion of
the military service.[^57] The rules concerning reporting back or
applying for reemployment vary depending on the length of the absence. A
person whose absence was less than thirty-one days must report back to
work at the beginning of the first regularly scheduled work period.[^58]
Further, the member must report back on the first full calendar day
after the completion of military duty *plus* eight hours after a period
for safe transportation from the duty location to the employee's
residence.[^59]

The rule most often will apply to Reserve and Guard members
participating in inactive duty training, unit training assemblies,
annual training, or brief periods of active duty for other purposes.
Typically, the member will simply show up at work on the next scheduled
shift after the duty. If, however, the member arrives home from military
duty less than eight hours before the next scheduled shift, the member
need not report at that next scheduled shift, but may wait until the
subsequent shift to report. As a practical matter and in the interest of
good relations with one's employer, a member would do well not to split
hairs about this timing. The legal assistance attorney would do well to
advise a client to report as soon as he is reasonably able to work
(i.e., safely and competently) after a short absence for duty,
notwithstanding the availability of an eight-hour rest period. If
reporting after the eight hour period after returning home is impossible
or unreasonable through no fault of the employee, the employee may
report without penalty as soon as possible after the eight hour
period.[^60]

A person who has been absent for examination or testing prior to
entering the military service is subject to the short absence rules
discussed above, regardless of the length of the absence.[^61] Examples
would include individuals who are taking physical examinations for entry
into a service academy or persons taking tests like the Armed Forces
Vocational Aptitude Battery.

A person who is absent for more than thirty days but less than 181 days
must submit an application for reemployment to the employer within
fourteen days of the end of the military duty.[^62] If, through no fault
of the employee, submission of the application within fourteen days is
impossible or unreasonable, the application must be submitted on the
next full calendar day when submission becomes possible.[^63] As a
practical matter, many employees absent for this medium term will simply
report to work at some reasonable or agreed upon time after their return
from duty. Again, the practical advice to a client should be to report
back as soon as reasonable possible. Discussion with the employer in
advance is the best course for the service member/employee.

Only a few employers, and only with respect to certain types of jobs,
likely will require a member to actually submit an application for
reemployment after relatively brief periods of military duty. But, the
nature of the application for reemployment is within the discretion of
the employer, subject of course to the requirement that the employer not
discriminate against the returning employee on the basis of military
service.[^64]

In the current state of international security affairs, Guard and
Reserve members are absent more frequently than before for deployments
that fit in this intermediate range. Many Guard and Reserve members may
be away for these types of deployments several times a year. This fact
may be difficult to accept for those employers who adhere to the
obsolete notion that Guard and Reserve members are "weekend warriors"
who go to "summer camp."[^65] As a result, more employment conflicts are
likely with respect to frequent and lengthy deployments.

A member who is absent for more than 180 days for military duty must
submit an application for reemployment within ninety days of the end of
the military duty.[^66] Such long-term absences typically may include
basic military training followed by technical training, in-residence
professional military training, or mobilization in a significant
contingency. However, it could include an Active Guard/Reserve (AGR)
tour.[^67] It might also include the situation where a person without
prior military affiliation decides to enlist or seek an appointment in a
Regular component and to return after a term of service.[^68]

An employee who is hospitalized for or convalescing from an injury or
illness suffered during military duty may report back or apply for
reemployment (depending on the length of the original military absence)
at the end of the period of hospitalization or convalescence.[^69]
However, that period cannot exceed two years for the purposes of
USERRA.[^70] If the hospitalization or convalescence is, in fact, more
than two years, the period may be extended by the minimum time necessary
to accommodate circumstances that were beyond the employee's control but
which made it impossible or unreasonable to report or apply within the
usual statutory period.[^71]

It is not clear in the statute when the two-year period is to commence.
Does it commence at the end of the military service or does it commence
at the end of the period in which the employee otherwise would be
required to report or apply? The fact is that most Guard and Reserve
members injured on active duty[^72] are retained on active duty for some
period of convalescence. The answer to the question becomes more
significant, however, if the member is injured while performing inactive
duty training or when Guard members are injured in Title 32 status.[^73]

Failing to follow the statutory process for reemployment does not mean
that the service member automatically loses the right to
reemployment.[^74] However, the member may be subject to the
"established policy and general practices of the employer pertaining to
explanations and discipline with respect to absence from scheduled
work."[^75] In other words, a member who fails to report back at the
time required in the statute may be disciplined for missing work in the
same manner that a nonmilitary affiliated employee could be. Indeed, a
failure to comply with the statute could result in a loss of a job if
the employer's established policy, applied in a nondiscriminatory
fashion, mandated such a sanction.[^76]

Employees who are absent on military duty for more than thirty days may
be required by their employers to provide documentation that their
application for reemployment was timely.[^77] This apparently requires
some form of documentation to show when their period of duty ended. The
employer may also require evidence that the employee was separated under
honorable conditions,[^78] if there is a separation involved. While many
employers who have received advance notice of an absence for military
duty will not require documentation, a returning service member/employee
should always be prepared to provide it.

A person's voluntary entry onto military duty, as opposed to being
involuntarily ordered to duty, generally does not affect the person's
right to be re-employed. There is, however, an important limitation that
may affect a member's decisions with respect to volunteering for certain
duty. The reemployment provisions of the statute do not apply if the
cumulative length of an absence for duty and all previous absences for
military duty from positions with the same employer exceed five
years.[^79] There are several exclusions from the five-year limitation.
Any service beyond five years necessary to complete an initial military
service obligation is excluded from the five-year limitation.[^80]
Perhaps most significant for Guard and Reserve members is that inactive
duty training and annual training are excluded from the five-year
limitation.[^81] However, full-time National Guard duty in the AGR
program is subject to the five-year limitation.[^82] Also excluded from
the five-year limitation is any duty performed when the member is
involuntarily ordered to or retained on active duty;[^83] ordered to or
retained on active duty during a war or national emergency declared by
Congress or the President;[^84] ordered to active duty in support of an
operational mission for which personnel have been involuntarily called
to active duty;[^85] ordered to active duty in support of a "critical
mission" or "critical requirement", as determined by the Service
Secretary;[^86] or called into federal service as a member of the
National Guard to suppress an insurrection or rebellion, repel an
invasion, or execute the laws of the United States.[^87]

USERRA provides an employer with three affirmative defenses in an action
to enforce a service member/employee's reemployment rights: they
include, changed circumstances, undue hardship, and the temporary nature
of the prior employment.[^88] An employer has the burden of proof as to
these defenses, and if the employer is successful, the service member
employee will be unable to return to that job.[^89] The defense of
changed circumstances requires that the employer show that reemployment
has become impossible or unreasonable.[^90] The defense of undue
hardship applies in the special situations where the employee incurred
or aggravated a disability while on military duty[^91] or where two or
more individuals may have reemployment rights to the same position and
one has incurred or aggravated a disability while on military duty.[^92]
The defense concerning the temporary nature of the prior employment
requires the employer to show that the position the employee left was
for a "brief, nonrecurrent period and there \[was\] no reasonable
expectation that such employment \[would\] continue indefinitely or for
a significant period."[^93]

### D. Nature and Extent of Reemployment Rights Under USERRA

USERRA requires that a returning service member who is entitled to the
protections of the statute "shall be promptly re-employed in a position
of employment . . .."[^94] But the nature and extent of reemployment
rights remains, as has been the case for more than half a century, a
fertile ground for conflict and, ultimately, litigation between
employers and returning service members. However, the basic principles
of the law have been the same through the various iterations of the
statutory enactment. In the first case concerning veterans' reemployment
rights decided by the United States Supreme Court after World War II,
*Fishgold v. Sullivan Drydock & Repair Corp.,*[^95] Justice Douglas,
writing for the Court, observed:

> The \[Selective Training and Service Act of 1940\] was designed to
> protect the veteran in several ways. He who was called to the colors
> was not to be penalized on his return by his absence from his civilian
> job. He was, moreover, to gain by his service for his country an
> advantage which the law withheld from those who stayed behind. . . .
> Thus, he does not step back on the seniority escalator at the point he
> stepped off. He steps back on at the precise point he would have
> occupied had he kept his position continuously during the war.[^96]

The *Fishgold* "escalator" became an enduring metaphor for the scheme
Congress had established. It remains apt under USERRA. The statute
distinguishes between those employees absent for less than ninety-one
days and those absent for more than ninety-one days, but in both
situations, the escalator principle is applicable.

Those service members returning after an absence of less than ninety-one
days must be reinstated to "the position of employment in which the
person would have been employed if the continuous employment of such
person with the employer had not been interrupted by such service, the
duties of which the person is qualified to perform."[^97] This might be
the same position the person left, but the statute is not so narrow.
Depending the employer's personnel policies, the position to which the
returning person may have rights may be a position with a different
title, different responsibilities and different pay, if that's where the
person would have landed had he or she not been absent for military
duty.[^98] Thus, for example, if the employee was scheduled to be
promoted while absent and would have been promoted but for the absence,
the person is entitled to the promotion upon return as long as they
qualified for the new position. The escalator principle dictates that
result. Likewise, if the person was scheduled to be rotated laterally
while absent and would have but for the absence, then upon return, the
person may be placed in the new lateral position if otherwise qualified.
The escalator did not go up, but the moving walkway advanced. The
principle is the same. Of course, escalators sometimes move in
retrograde. If the employee would have been demoted but for the military
absence, the employee may be returned to the lesser position.[^99]

There is a considerable amount of case law concerning the escalator
principle in the context of promotions, accrued benefits, and
seniority.[^100] The Supreme Court has said, in essence, that longevity
is the engine of the escalator.[^101] Thus, the escalator moves for the
returning service member to the point where it is reasonably certain the
member would have ended up if the member had been continuously
employed.[^102]

> Thus, on application for re-employment, a veteran is not entitled to
> demand that he be assigned a position higher than that he formerly
> held when promotion to such a position depends, not simply on
> seniority or some other form of automatic progression, but on the
> exercise of discretion on the part of the employer.[^103]

Additionally, if the right to a promotion or benefit was, at the time
the employee left for military, subject to some "significant
contingency," then USERRA does not require that the returning employee
be given that promotion or benefit.[^104]

If the person is not qualified to perform the duties of the position in
which he or she would have been employed (even if it was the same
position the person occupied before they left), then the employer must
make reasonable efforts to qualify the person for the new
position.[^105] This means that the employer must provide retraining or
upgrade training if the skills or technology are different when the
person returns from military duty. If those qualification efforts fail,
then the employee must be returned to the position held on the date the
military service commenced.[^106]

A service member returning from a military absence of more than ninety
days also generally must be reemployed in "the position of employment in
which the person would have been employed if the continuous employment
of such person with the employer had not been interrupted by such
service . . . the duties of which the person is qualified to
perform."[^107] However, the employer may satisfy the obligation by
placing the employee in "a position of like seniority, status and
pay."[^108] The escalator/moving walkway principle applies in this
situation as well. Again, if the person is not qualified to perform the
duties of the position in which he or she would have been employed (even
if it was the same position the person occupied before they left), then
the employer must make reasonable efforts to qualify the person for the
new position.[^109] If those efforts fail, then the employee must be
returned to the position held on the date the military service
commenced, or "a position of like seniority, status and pay."[^110]

Not infrequently, an employee returns to a civilian job having incurred
or aggravated a disability in the course of military duty. In that case,
provisions of both USERRA and the Americans with Disabilities Act
(ADA)[^111] apply. The ADA prohibits discrimination against a "qualified
individual with a disability"[^112] who is capable of performing the
"essential functions" of a job with or without "reasonable
accommodation."[^113] A person has a disability if the person has a
physical or mental impairment that substantially limits one or more
major life activities.[^114] A person without such an impairment is
entitled to the protections of the ADA if the person has a record of
such impairment or is regarded as having such an impairment.[^115]

USERRA is compatible with the ADA. If an employee returns from military
duty having incurred or aggravated a disability during that duty, the
employer is obligated to make "reasonable efforts" to accommodate that
disability in reemploying the person as described above.[^116] If, after
such reasonable efforts, the person remains unqualified for the position
to which he or she otherwise would be entitled under the statute, then
the person is entitled to "any other position which is equivalent in
seniority, status, or pay" which the person is qualified to perform or
would become qualified to perform with reasonable efforts by the
employer.[^117] If for some reason the person cannot be employed in the
equivalent position, then the person must be offered "a position which
is the nearest approximation . . . in terms of seniority, status, and
pay consistent with" the person's circumstances.[^118]

### E. Employer's "Undue Hardship" Defense When 

**Service Member Returns Unqualified or With a Disability**

The employer generally must make reasonable efforts to accommodate the
disability or to qualify the employee for the relevant position, if a
service member/employee returns from military duty with a disability or
is otherwise unqualified for the job the employee left or the one he is
entitled to upon return.[^119] However, an employer is not required to
reemploy a person or to accommodate or qualify the person if doing so
would impose an "undue hardship" on the employer.[^120] This is a
concept borrowed from federal disability law.[^121] USERRA defines
*undue hardship* in the same manner as the ADA defines the concept: that
is, "actions requiring significant difficulty or expense."[^122] Both
statutes list as factors to be considered when determining undue
hardship, the nature and cost of the action required, the overall
financial resources of the facility involved and those of the entire
business, and the type of operations of the employer.[^123] The employer
has the burden of proving undue hardship under both statutes.[^124]

### F. Scheduling of Military Leave[^125] 

### 

Legal assistance attorneys are frequently asked questions that involve
issues of scheduling an employee's military leave with regular shifts,
overtime, and vacation. These issues routinely cause conflicts between
employers and employees because of misunderstandings on both sides.

One recurring question that has a simple, obvious answer is whether an
employer is required to offer the employee a paid leave for military
duty. The simple answer is no. As the statute clearly states, an
employee absent for military duty is considered to be on furlough or
leave of absence.[^126] The statute does not require that the employee
be paid during that furlough or leave of absence. Confusion sometimes
arises because some employers do offer paid military leave of limited
duration. This is an act of grace on the employer's part.

Another related issue concerns the employee's use of accrued vacation
for military leave. Sometimes employers have required the use of accrued
vacation; other employers have prohibited the use of vacation time for
military leave. Both policies are violations of USERRA. Since an
employee is considered to be on furlough or leave of absence while on
military duty, the employee cannot be required to use vacation time.
That would be unlawful discrimination with respect to a benefit of
employment. On the other hand, if an employee desires to use vacation
for military leave, the statute specifically permits them to do
so.[^127]

Whether an employer can be required to permit an employee to make up
work missed during military duty is another issue that came before the
United States Supreme Court in *Monroe v. Standard Oil Co.*[^128] Monroe
worked at an oil refinery and was a member of the Ohio Army National
Guard. The refinery, owned by Standard Oil Company of Ohio (Sohio)
operated twenty-four hours a day, seven days a week. Monroe worked a
five day week, but his work days were different every week.
Consequently, a number of times during the year, Monroe's civilian work
schedule conflicted with his scheduled military duties. To resolve those
conflicts, Monroe was occasionally able to trade shifts with other
employees, which was then allowed under the collective bargaining
agreement. Sohio did not object. On many occasions, however, Monroe was
apparently unable to find another employee to trade shifts to
accommodate his military unit's schedule. On those occasions, Sohio, as
it was required to do, permitted Monroe to take a leave of absence.
Sohio filled Monroe's job with other employees, frequently paying
overtime to the substitute. Sohio did not pay Monroe for the time he was
on military duty and did not permit him to make up those hours by
working out side his usual schedule.[^129]

Monroe sued, alleging that the failure to allow him to work a forty-hour
week violated a provision of the veterans' reemployment rights law then
in effect.[^130] Monroe contended he had been denied "an incident or
advantage of employment" because of his military affiliation.[^131] In a
5 to 4 decision, the Supreme Court held that Sohio had not discriminated
against Monroe by not allowing him to make up the hours he lost to
military duty.[^132] Justice Stewart, writing for the majority, observed
that Monroe had been assigned the same burden of weekend and shift work
as had other employees and he was allowed to exchange shifts just as
other employees.[^133] Chief Justice Burger, writing in dissent, cast
the issue as whether Monroe had been given "the same meaningful chance
as other employees without military commitments to work full time in
order to earn a living wage."[^134] Working a forty-hour week was a
benefit conferred by the employer and which could not be denied an
employee with military obligations, in the view of the Chief
Justice.[^135]

The majority opinion in *Monroe* remains the law, despite the enactment
of the new statute. The relevant provisions of USERRA are substantively
the same as the veterans' reemployment rights provisions construed in
*Monroe*.[^136] The issue turns on whether working a forty-hour week is
a benefit of employment. There is not an obvious answer to this, and
with only two Justices who participated in the *Monroe* decision
remaining on the Court, the outcome, should this issue be revisited,
cannot be predicted.

### G. Preservation of Benefits During Military Leave

*1. Generally*

USERRA provides that reemployed service members are "entitled to the
seniority and other rights and benefits" they had when they left for
duty "plus the additional seniority and rights and benefits" they would
have attained if continuously employed.[^137] This is a clear statutory
expression of the escalator principle that has existed in veterans'
reemployment law for nearly six decades.[^138] A person absent from
employment for military service is "deemed to be on furlough or leave of
absence" during military service and is entitled to the same
nonseniority based rights and benefits available to other employees who
are on furlough or leave of absence.[^139] This includes not only
benefits available at the time the person commenced service, but any
benefits made available to other employees on a leave of absence of any
sort during the time of the person's military service.[^140] A service
member/employee may be required to pay for benefits continued during
military service if other employees on leaves of absence are required to
pay for the same benefits.[^141]

*2. Health Benefits*

A service member/employee's health benefits may be terminated upon the
person's commencement of military service, subject to the obligation not
to discriminate against the service member compared to other employees
on leaves of absence.[^142] However, employer-sponsored health plans are
required to permit a service member/employee to continue coverage during
military leave for up to eighteen months from the day military service
begins or until the day after the person was required to report back or
apply for reemployment, whichever is sooner.[^143] The service
member/employee may be required to pay up to 102 percent of the full
premium for the coverage,[^144] except that an employee serving on
military duty for less than thirty-one days cannot be required to pay
more than the employee share of the premium.[^145] If health coverage is
terminated because the employee has commenced military duty, no waiting
period or exclusion can be imposed upon the employee's return if such
waiting period or exclusion would not have been imposed in other
circumstances.[^146] However, this prohibition is inapplicable with
respect to any illness or injury incurred during or aggravated by the
person's military service.[^147] In other words, an injury that is
incurred or aggravated by an employee's military service need not be
covered by his or her employer's health plan when the person returns to
the civilian job.

*3. Pension Benefits*

For pension benefits based on service credits, an employer is required
to credit the reemployed military member with time spent on military
duty as if the person had not been absent.[^148] If the pension plan
involves employee contributions, the service member/employee must be
allowed to make up any contributions missed during military
service.[^149] The employee must be allowed a period of up to three
times the length of the military service, but not more than five years,
to make up the contributions.[^150]

*4. Special Protection Against Discharge*

A bedrock principle of American employment law is the so-called
employment at will doctrine. This is the rule that an employee may be
discharged at any time, for any reason, or even for no stated
reason.[^151] During the last half of the twentieth century, the
employment at will doctrine has been subjected to a number of statutory
and judicial exceptions.[^152] USERRA provides a limited exception for
reemployed service members.

A person who has been reemployed after a period of military service
cannot be discharged from that employment except for cause for a period
of one year if the military service was more than 180 days.[^153] If the
term of military service was more than thirty days, but less than 180
days, the period of special protection is reduced from one year to 180
days.[^154] These periods run from the date of reemployment. Thus, it
would appear that a new period commences every time the member is
reemployed after an absence of the requisite length. The special
protection logically should apply to demotions as well as
discharges.[^155]

There is, however, no special protection if the military service was
less than thirty-one days. In the current age of high operations tempo,
this aspect of the statute is most unfortunate. It is easy to find any
number of Reserve and Guard members whose unit missions require their
skills for numerous periods of time amounting to far more than thirty
days over the course of a year or less. But, if no single period amounts
to more than thirty days alone, the member does not receive the special
protection from discharge. Guard and Reserve members know that the
frequency of absence is just as much an irritant to their employers as
the length of their absences. Yet, the statute as written leads to
anomalous results in view of its stated purpose to prohibit
discrimination against persons because of their military service. In its
formulation of the special discharge protection, the statute not only
fails adequately to protect some service member/employees from
discrimination, it irrationally discriminates among service
member/employees.[^156]

### H. Enforcement and Remedies

The Secretary of Labor is primarily responsible for enforcing and
executing the provisions of USERRA.[^157] This responsibility is carried
out through the Department of Labor's Veterans Employment and Training
Service (VETS).[^158] A person who is aggrieved by an employer's actions
in violation of USERRA may file a complaint with the Secretary through
VETS. [^159] The Secretary is obligated to investigate each complaint of
unlawful actions under USERRA.[^160] The Secretary has subpoena power in
any such investigation[^161]. If the investigation reveals that there
was a violation, the Secretary is required to make "reasonable efforts
to ensure" that the employer complies with the law.[^162] If these
efforts fail to rectify the situation, the complaining employee will be
notified by the Department of Labor and informed of the right to proceed
with enforcement action.[^163]

An employee who has been notified of unsuccessful resolution efforts has
two options to enforce USERRA against a private employer. The employee,
at his or her own expense, may commence an action against the employer
in the United States District Court.[^164] The employee instead may
request that the complaint be referred to the United States Department
of Justice, which is authorized to act as counsel for the employee in a
civil action against the employer in the appropriate federal district
court.[^165] If the Justice Department refuses representation, then the
employee may commence his or her own action against the employer in
federal court.[^166]

*1. Procedure in the District Court*

USERRA provides that no fees or court costs may be charged against a
person filing suit to enforce the statute.[^167] No state statute of
limitations applies to USERRA actions,[^168] and the statute itself
appears to have no time limit for filing suit against a private
employer. Only an employer or potential employer is a necessary party
respondent in a USERRA suit.[^169] Finally, employers may not seek
judicial relief under the statute.[^170]

*2. Remedies Against Private Employers*

The district court may award compensatory damages for lost wages or
benefits in a USERRA suit.[^171] If the court finds that the violation
was willful, the court may order the employer to pay an additional
amount, equal to the compensatory damages, as liquidated damages.[^172]
Additionally, "\[t\]he court may use its full equity powers . . . to
vindicate fully the rights or benefits" guaranteed by USERRA.[^173] The
court may award attorney fees, expert witness fees, and other litigation
costs to a prevailing employee.[^174]

*3. Enforcement Against State Governments*

USERRA purportedly applies to state governments as employers.[^175] That
has always been a constitutionally disputable notion. Whatever its
validity, the ability to enforce USERRA against the states was almost
certainly laid to rest by the recent United States Supreme Court
decision in *Alden v. Maine.*[^176]

Following the decision of the Supreme Court in *Seminole Tribe of
Florida v. Florida,*[^177] that Congress lacks power under Article I of
the Constitution[^178] to abrogate the states\' sovereign immunity in
federal court, this Eleventh Amendment[^179] argument began to show up,
and succeed, in USERRA suits.[^180] In response, Congress limited USERRA
suits against states to state court.[^181] Seven months later, the
Supreme Court decided *Alden v. Maine*.

In *Alden*, several employees of the state of Maine sued for overtime
pay and other relief under the Fair Labor Standards Act (FLSA).[^182]
The FLSA, like USERRA, purports to apply to the states.[^183] Alden's
action was brought in a state court in Maine.[^184] The Supreme Court
held that "the powers delegated to Congress under Article I of the
United States Constitution do not include the power to subject
nonconsenting States to private suits for damages in state
courts."[^185] This decision almost certainly applies to USERRA because
USERRA, like the FLSA, purportedly authorizes suits against states in
state courts.

However, service members who are state employees may not be completely
without a USERRA remedy in either state or federal court. Eleventh
Amendment immunity does not apply to state officials sued in their
official capacities if the remedy sought is prospective injunctive
relief, nor does it apply to state officials sued for damages in their
individual capacities.[^186] This is important because in many cases,
injunctive relief may be the most important remedy to the plaintiff. The
question in a USERRA suit against a state official will be whether the
official individually (as opposed to the state itself) is an employer
within the meaning of the statute. There seem to be no cases on this
point. However, that the term *employer* in USERRA is defined to include
\"a person . . . to whom the employer has delegated the performance of
employment-related responsibilities.\"[^187]

*4. Enforcement Against Federal Agencies*

The federal government is subject to USERRA.[^188] About 73,000 federal
employees serve in the Ready Reserve.[^189] In USERRA, Congress declares
that "the Federal Government should be a model employer in carrying out
the provisions of this chapter."[^190] The Secretary of Defense and the
Secretary of Labor sent a joint memorandum in 1998 to their Cabinet
colleagues to spur the federal government to be in fact a model
employer.[^191] Unfortunately, the sense of Congress and the efforts of
the Cabinet sometimes fall short. In 1998, while complaints against
private employers and state governments decreased, complaints against
federal agencies were up by 10 percent.[^192] Surprisingly, the Air
Force itself, on occasion, has been identified as less than a "model
\[civilian\] employer" for Air Force Reserve members.[^193] It is worth
noting that the provisions for enforcing USERRA against federal agencies
do not apply to intelligence community agencies.[^194] While these
agencies are generally subject to USERRA, these agencies have been given
the authority to develop their own rules concerning implementation and
enforcement of the statute.[^195]

A federal civilian employee aggrieved with respect to USERRA rights may
file a complaint with the Secretary of Labor through VETS.[^196] The
Secretary has the same obligation to investigate complaints against
federal agencies as against private employers.[^197] If an investigation
reveals a violation of USERRA by a federal agency, the Secretary is
required to make "reasonable efforts to ensure" that the federal agency
complies with the law.[^198] If these efforts fail to rectify the
situation, the complaining employee will be notified by the Department
of Labor and informed of the right to proceed with enforcement
action.[^199] An employee who has been notified of unsuccessful
resolution efforts has two options to enforce USERRA against a federal
agency. The employee, at his or her own expense, may submit a complaint
to the Merit Systems Protection Board (MSPB or Board).[^200]
Alternatively, the employee may request that the Secretary of Labor
refer the complaint to the Office of Special Counsel, which is
authorized to act as counsel for the employee in an action on the
complaint before the MSPB.[^201] If the Office of Special Counsel
refuses representation, then the employee may commence his or her own
action before the MSPB.[^202]

*5. Remedies Against Federal Agencies*

If the MSPB determines that there has been a violation of USERRA by a
federal agency, the Board "shall" order the agency to comply with the
statute and to compensate the employee for lost wages and
benefits.[^203] If the employee has submitted the complaint directly to
the Board and is not represented by the Office of Special Counsel, the
Board may award the prevailing employee attorneys' fees, expert witness
fees and other litigation costs.[^204] If the MSPB issues an adverse
order or decision an employee may petition the United States Court of
Appeals for the Federal Circuit for review.[^205] If the employee was
represented by the Office of Special Counsel before the Board, then he
or she may be represented by that agency in the Federal Circuit.[^206]

# **III. State Law Protections for** 

# **Service Member/Employees**

Most states have statutes that, to one degree or another, afford
protection to military members similar to the USERRA protections.[^207]
The scope of these laws varies from state to state. Some merely afford
reemployment protection to state and local government employees.[^208]
Others actually criminalize an employer's refusal to allow time off for
military duty.[^209] Many states have statutes that prohibit a broad
range of discrimination against service members.[^210] The legal
assistance attorney advising a client on USERRA issues should not
overlook the possibility that greater or additional relief may be had in
some cases under state law. Congress recognized as much in USERRA.[^211]
A state law that purported to restrict rights under USERRA would be, of
course, preempted by USERRA.[^212] Given the constitutional obstacles to
enforcement of USERRA against the states, having state remedies may be
very fortunate in some circumstances.[^213]

The availability of state law remedies is especially important to
members of the National Guard who perform state emergency, disaster
relief, and law enforcement mission in state active duty status. In
addition, National Guard members may be involved in training in state
active duty status. State law may also protect National Guard members
who are on full-time state active duty status. State law is important in
these situations because USERRA has no application to state active duty
performed by Guard members.[^214]

## **IV. Legal Assistance Practicum**

USERRA issues are considered to be "mission-related legal assistance" in
the Air Force.[^215] Regardless of this nomenclature, USERRA is, as a
practical matter, mission-related in all the services because of the
increased reliance on reserve component resources. Thus, the legal
assistance attorney must be comfortable advising on the legal and
practical issues that may arise under USERRA.

Practicing preventive law in the USERRA is highly important. Perhaps the
most significant advice a legal assistance attorney can give concerning
USERRA is a single word: communicate. Early and frequent communication
between the service member/employee and the employer will prevent
conflict later. It is especially important to avoid conflict at critical
junctures, such as just prior to an exercise or real-world mission. The
mobility line is not a good place from which to call an employer, unless
the situation was unavoidable. Clients should be advised to request
leaves of absence in writing at the earliest known date.[^216]

Keeping employers informed about Reserve and Guard matters generally is
also an excellent way to avoid USERRA issues. Many Reserve and Guard
commanders invite local employers to their bases for community briefings
and opportunities to see some of the unit activities up close. A
personal telephone call from a commander, first sergeant, or supervisor
to an employer frequently can head off routine misunderstandings and
maintain good relations.

When informal mechanisms fail to resolve USERRA issues, the legal
assistance attorney may want to contact the employer directly, subject
of course to current guidance concerning the scope of legal
assistance.[^217] The Labor Department's Veterans Employment and
Training Service will also contact employers. Legal assistance attorneys
may desire to refer clients to that Labor Department agency.

Legal assistance attorneys should also be aware of the activities of the
National Committee for Employer Support of the Guard and Reserve
(NCESGR). The NCESGR publishes fact sheets and other information on
USERRA for employers and service members. The committee also has local
ombudsmen who will attempt to informally resolve USERRA issues between
employers and service members. NCESGR also gives awards to employers
friendly to the Guard and Reserve. While it is a DOD sponsored program,
NCESGR is run by volunteers, many of whom are business persons.

### V. Conclusion

For nearly sixty years, Congress has recognized the importance of
preserving the ability of those called to service to return to their
civilian employment when their service has ended. Legislation concerning
veterans' re-employment rights has changed in step with shifts in
national defense policy. At the end of the twentieth century, as the
United States relies on its reserve forces to an extent never before
envisioned, USERRA is essential in keeping skilled members in the
reserve components. The statute protects the jobs of Reserve and
National Guard members and prohibits discrimination in employment for
all veterans, including those leaving extended active duty. At the same
time, the statute provides straightforward rules for employers to follow
concerning the re-employment rights of their service member/employees.

Mutual understanding among the services, employers, and service
member/employees is a key element in America's defense policy in the
twenty-first century. Legal assistance attorneys therefore perform an
important role in our "Total Force" expeditionary military by providing
accurate advice on USERRA. A force with strong roots in the free and
democratic society that it protects is a paramount American value and
USERRA is a pillar that supports that value.

[^1]: ^\*^*Lieutenant Colonel Manson (B.S., United States Air Force
    Academy; J.D. with great distinction, University of the Pacific,
    McGeorge School of Law) is the Staff Judge Advocate, Headquarters
    California Air National Guard, Sacramento, California. As a
    civilian, he is a Judge of the Superior Court of California for the
    County of Sacramento and Adjunct Professor of Employment Law at
    McGeorge School of Law. He is a member of the California State Bar.*

[^2]: Honorable Charles L. Cragin, Acting Assistant Secretary of Defense
    for Reserve Affairs, Speech to Air National Guard Commanders
    Conference (Nov. 18, 1998).

[^3]: *USAF Almanac,* [Air Force Magazine]{.smallcaps}, May 1997, at
    114.

[^4]: *Id.* at 112; Strom Thurman National Defense Authorization Act for
    Fiscal Year 1999, Pub. L. No. 105-261, § 411, 112 Stat. 1920, 1997
    (1998) (authorizing end strength of Air Force Reserve).

[^5]: Pub. L. No. 783, 76th Cong., 2d Sess., 54 Stat. 885 (1940)
    (formerly codified at 50 U.S.C. app. § 308, *repealed by* Pub. L.
    No. 759, § 17, 88th Cong., 2d Sess., 62 Stat. 625 (1948)).

[^6]: Pub. L. No. 759, §9, 88th Cong., 2d Sess., 62 Stat. 614 (1948)
    (formerly codified at 50 U.S.C. app. § 459; *repealed by* Pub. L.
    No. 93-508, § 405, 88 Stat. 1600 (1974)).

[^7]: *See generally* S. Rep. No. 1286, 88th Cong., 2d Sess. (1948),
    *reprinted in* 1948 U.S.C.C.S. 1989, 2011 (1948).

[^8]: Vietnam Era Veterans Readjustment Assistance Act of 1974, Pub. L.
    No. 93-508, 88 Stat. 1594 (1974) (formerly codified at 38 U.S.C. §§
    2021-2027 (1976), *redesignated* 38 U.S.C. §§ 4301-4307 (1992))
    \[hereinafter Vietnam Veterans Readjustment Act\]. Tracking the
    numbering of the sections of Title 38, United States Code, which
    comprise the present Uniformed Services Employment and Re-employment
    Rights Act (USERRA) and the last "pre-USERRA" veterans reemployment
    legislation (the 1974 Act cited in this footnote) can be a bit
    confusing. As indicated in this footnote, the Vietnam-era
    reemployment legislation was codified originally in sections 2021
    through 2027 of Title 38. For some reason not now clear, these
    sections were codified in Chapter 43 of Title 38, following Chapter
    19 and preceding Chapter 21. In 1992, sections 2021 through 2027
    were redesignated as sections 4301 through 4307 and transferred to a
    new Chapter 43 of Title 38 in proper numerical sequence. *See* Pub.
    L. No. 102-568, § 506(a), 106 Stat. 4340 (1992). The present
    statute, USERRA, was enacted in 1994 and codified in Chapter 43 of
    Title 38 as sections 4301 through 4333. *See* Pub. L. No. 103-353, §
    2(a), 108 Stat. 3150 (1994). This new legislation provided for a
    sixty-day transition period. Any reemployments "initiated" during
    the sixty-day transition period remain subject to the 1974
    legislation in the prior sections 4301 through 4307. *See* Pub. L.
    No. 103-353, § 8, 108 Stat. 3175 (1994). It is conceivable that even
    as of this writing (late 1999) or later, a legal assistance attorney
    could be confronted with an issue arising out of that transition
    period. Reference to the prior sections 4301 through 4307 would then
    be necessary.

[^9]: *See generally* S. Rep. No. 93-907, at 110 (1974).

[^10]: The reemployment legislation was never an "Act" with its own
    special title. Some courts, commentators, and practitioners found it
    convenient to refer to the legislation in its various pre-1994 forms
    as the Veterans' Reemployment Rights Act or VRRA. *See, e.g.,* Gummo
    v. Village of Depew, New York, 75 F.3d 98 (2d Cir. 1996); Newport v.
    Ford Motor Co., 91 F.3d 1164 (8th Cir. 1996); Beattie v. Trump
    Shuttle, 758 F. Supp. 30 (D.D.C. 1991); Kevin G. Martin, *Employment
    Law*, 46 [Syracuse L. Rev]{.smallcaps}. 499, 507 (1995); Margery
    Sinder Freidman & Mark A. Trank, *Reservists' Rights to
    Re-employment and Benefits*, 14 [L.A. Law]{.smallcaps}., Mar. 1991,
    at 30; Judith Bernstein Gaeta, *Kolkhorst v. Tilghman: An Employee's
    Right to Military Leave Under the Veterans' Re-employments Rights
    Act,* 41 [Cath. U. L. Rev.]{.smallcaps} 259 (1991); Penni P.
    Bradshaw & Richard E. Fay, *"When Johnny Comes Marching Home Again":
    The Veterans' Re-employment Rights Act and Employer Obligations to
    Military Reservists,* 15 [Am. J. Trial Advoc]{.smallcaps}. 79
    (1991). This usage is perfectly acceptable.

[^11]: 38 U.S.C. §§ 4301-4333 (1998).

[^12]: Charles L. Cragin, *The Demise of the Weekend Warrior,* [Bangor
    Daily News]{.smallcaps}, May 27, 1999
    \<http://raweb.osd.mil/news/articles/bangornews.htm\>.

[^13]: The Berlin Wall was torn down by East and West Germans on
    November 9, 1989. The actual demise of the Wall is used as a
    metaphor for the eventual collapse of the Soviet empire, which
    occurred during the period 1989 to 1991.

[^14]: Memorandum from Honorable William S. Cohen, Secretary of Defense,
    *Integration of the Reserve and Active Components* (Sep. 11, 1997).

[^15]: Honorable Charles L. Cragin, Acting Assistant Secretary of
    Defense for Reserve Affairs, Remarks at the Reserve Officers
    Association National Convention (June 24, 1999) \[hereinafter Cragin
    ROA Speech\].

[^16]: Honorable Deborah R. Lee, Assistant Secretary of Defense for
    Reserve Affairs, Remarks at TELECON XV Convention (Oct. 27, 1995).

[^17]: 38 U.S.C. § 4301 (a)(1)-(2)(1998).

[^18]: *See id.* § 4301(a)(3).

[^19]: *See* 32 C.F.R. pt. 104.1 (1998).

[^20]: *See* 38 U.S.C. § 4303(4). *See also* H.R. Rep. No. 103-65,
    *reprinted in* 1994 U.S.C.C.A.N. 2449, 2454 (1994) (term *employer*
    broadly construed; every employer in United States is covered). As
    to state governments, however, see discussion *infra* notes 174-186
    and accompanying text.

[^21]: *See* Cole v. Swint, 961 F.2d 58 (5th Cir. 1992) (holding
    employer with two employees not exempt from 1974 VRRA). *See also*
    H.R. Rep. No. 103-65, *reprinted in* 1994 U.S.C.C.A.N. 2449, 2454
    (1994). By comparative example, Title VII of the Civil Rights Act of
    1964 applies only to entities with fifteen or more employees. *See*
    42 U.S.C. § 2000e (1998). Other statutes with similar small business
    exemptions include the Americans with Disabilities Act, 42 U.S.C. §
    12111(5) (fifteen or more employees), the Age Discrimination in
    Employment Act, 29 U.S.C. § 630(b) (1998) (twenty or more
    employees), and the Family and Medical Leave Act, 29 U.S.C. §
    2611(4) (fifty or more employees).

[^22]: The statute does not explicitly refer to applicants for
    employment. However, since the statute does explicitly prohibit
    discrimination as to, among other things, initial employment,
    applicants are covered. *See* 38 U.S.C. § 4311.

[^23]: *Id.* § 4311(a).

[^24]: *See id.* § 4304. The 1974 law required "satisfactory completion
    of military service." Vietnam Veterans Readjustment Act, *supra*
    note 7*.* The 1974 statute excluded from its coverage a person who
    received a discharge under other than honorable conditions.
    Brotherhood of Railway Clerks v. Railway Express Agency, Inc., 238
    F.2d 181 (6th Cir. 1956). The wording of the present section 4304 of
    USSERA would seem to extend coverage to persons with uncharacterized
    "entry level" separations. *See* *generally* Air Force Instruction
    36-3208, Administrative Separation of Airmen ¶ 1.19.1 (Oct. 14,
    1994) \[hereinafter AFI 36-3208\]; Air Force Instruction 36-3209,
    Separation and Retirement Procedures for Air National Guard and Air
    Force Reserve Members ¶ A2.3.2 (Feb. 1, 1998) \[hereinafter AFI
    36-2909\]. The present statute excludes coverage for members dropped
    from the rolls. 38 U.S.C. § 4304(4). *See* *generally* AFI 36-3208 ¶
    1.19.3; AFI 36-3209 ¶ A2.3.1. Unanswered by the statute is whether a
    person "released from the custody and control" of the military by
    reason of a void enlistment is entitled to coverage by USERRA. *See
    generally* AFI 36-3208 ¶ 1.19.2; AFI 36-3209 ¶ A2.3.3. Since the
    statute is to be broadly construed, it would seem that persons
    released for void enlistments (as opposed to fraudulent enlistments)
    should be entitled to coverage.

[^25]: *See id.* § 4311(a).

[^26]: *See id.*

[^27]: *See id.*

[^28]: *See id.*

[^29]: *See* 38 U.S.C. § 4311(c)(2).

[^30]: The term *adverse employment action* is not particularly a term
    of art, nor is it used or defined in the statute. It is used here to
    mean any action unfavorable to the employee or applicant for
    employment.

[^31]: 38 U.S.C. § 4311(b).

[^32]: *See* 42 U.S.C. § 2000e-2(m) (1998); Price Waterhouse v. Hopkins,
    490 U.S. 228 (1989). The legislative history of USERRA indicates an
    intent to disapprove dicta in *Monroe v. Standard Oil Co.*, 452 U.S.
    549, 559 (1981), which some lower federal courts took to mean that
    military affiliation must have been shown to be the sole factor in
    discrimination under the previous reemployment rights statute. H.R.
    Rep. No. 103-65, *reprinted in* 1994 U.S.C.C.A.N. 2449, 2457 (1994).
    *See also* Sawyer v. Swift & Co., 836 F.2d 1257 (10th Cir. 1988).

[^33]: Price Waterhouse, 490 U.S. at 252-253.

[^34]: 38 U.S.C. § 4311(c)(2).

[^35]: *Compare* 38 U.S.C. § 4311(c)(1) *with* 42 U.S.C. § 2000e-3(a)
    (antiretaliation provision of Title VII of the Civil Rights Act of
    1964), *and* 42 U.S.C. § 12203(a) (prohibition against retaliation
    under Americans with Disabilities Act), *and* 29 U.S.C. § 623(d)
    (1998) (antiretaliation provision of Age Discrimination in
    Employment Act).

[^36]: *See* 140 Cong. Rec. H9136 (1994), *reprinted in* 1994
    U.S.C.C.A.N. 2493, 2494 (1994) (Joint Explanatory Statement on H.R.
    995).

[^37]: *See* 38 U.S.C. § 4324.

[^38]: 71 M.S.P.R. 227 (M.S.P.B. 1996).

[^39]: *Id.* at 231.

[^40]: *See id*. at 236.

[^41]: *See id*. at 237. *See also* Meritor Savings Bank v. Vinson, 477
    U.S. 57 (1986) (finding sexual harassment actionable as sex
    discrimination under Title VII).

[^42]: Petersen, 71 M.S.P.R. at 239. *See* *also* Meritor Savings Bank,
    477 U.S. 57.

[^43]: Petersen, 71 M.S.P.R. at 239.

[^44]: *See* 38 U.S.C. §§ 4301(a)(2), 4312 (1998).

[^45]: Full-time National Guard duty refers duty in the National Guard
    called "Active/Guard Reserve" (AGR) duty. AGR duty is active duty
    (for Reserve members) performed by a member of a reserve component
    of the Army, Navy, Air Force, or Marine Corps, or full-time National
    Guard duty performed by a member of the National Guard. It lasts for
    a period of 180 consecutive days or more and is for the purpose of
    organizing, administering, recruiting, instructing, or training the
    reserve components. *See* 10 U.S.C. § 101(d)(6)(A) (1998). *See
    also* Air National Guard Instruction 36-101, The Active
    Guard/Reserve Program (Dec. 29, 1993). Many AGR members serve entire
    careers in that status. There are about 992 AGR members in the Air
    Force Reserve and about 10,931 in the Air National Guard. *See*
    Strom Thurman National Defense Authorization Act for Fiscal Year
    1999, Pub. L. 105-261, § 412, 112 Stat. 1920, 1997 (1998)
    (authorizing end strength of reserves on active duty for support of
    reserve components). AGR duty performed in the Air National Guard
    "shall be considered active duty in Federal service as a Reserve of
    the Air Force." 10 U.S.C. § 12602(b)(2). Notwithstanding that
    provision, National Guard AGRs perform duty under Title 32, United
    States Code, and are subject to state military control unless called
    to active duty under Title 10, United States Code. Title 32 is the
    portion of federal law that pertains to the National Guard and its
    members when not in Federal (Title 10) service. National Guard
    members on Title 32 status are under the control of the
    commander-in-chief of their state militia (the Governor of the
    State) and are not subject to the Uniform Code of Military Justice.
    *See* Perpich v. Department of Defense, 496 U.S. 334 (1990). Title
    10 is the portion of federal law that generally governs the
    organization and training of the armed forces. *See* 10 U.S.C. §
    802. National Guard members may be called or ordered to federal
    active duty under Title 10 under a variety of circumstances beyond
    the scope of this article. *See* 10 U.S.C. §§ 331-335, 12301-12304,
    12311, 12406. National Guard members serving in Title 10 status are
    subject to the UCMJ. *See generally* *Perpich,* 496 U.S. 334, for an
    excellent discussion of the various roles in which members of the
    National Guard serve. AGRs are a distinct personnel category from
    military technicians and state active duty National Guard personnel.

[^46]: Air Reserve Technicians (ARTs) serve in the Air Force Reserve and
    are statutorily known as *military technicians*. *See* 10 U.S.C. §§
    10216, 10217; Air Force Instruction 36-108, Air Reserve Technician
    Program (July 26, 1994). These personnel are federal civilian
    employees who perform certain full-time functions with Air Force
    Reserve units. Most are "dual-status" technicians; that is, they are
    required to be military members of the Reserve organizations in
    which they are employed. ARTs wear military uniforms while engaged
    in their duties and observe military customs and courtesies. A
    termination of their military status (through administrative
    discharge, court-martial, medical discharge, or retirement) requires
    termination of their civilian employment. There are about 9,761
    ARTs. *See* Strom Thurman National Defense Authorization Act § 413,
    112 Stat. at 1998 (authorizing end strength of military technicians
    in Air Force Reserve). A very few technicians (perhaps less than 3
    percent) are "non-dual status"; that is, they are not military
    members of their units. However, Congress has ensured that the
    non-dual status technician soon will be a thing of the past. *See*
    National Defense Authorization Act for Fiscal Year 1996, Pub. L. No.
    104-106, § 513, 110 Stat. 186, 306 (1995) (stating that no more
    non-dual status technicians are to be hired six months after
    effective date of legislation). Without looking at personnel
    records, it is impossible to distinguish ARTs from active duty
    personnel or other reserve members on duty.

[^47]: National Guard technicians are a personnel category similar to
    ARTs, although the history of the National Guard Technician program
    is very different from that of the ART program. Like ARTs, National
    Guard technicians are federal civilian employees employed in
    National Guard units. Most are dual-status technicians required to
    be military members of the units in which they are employed. *See*
    32 U.S.C. § 709 (1998). They are required to wear military uniforms
    and observe military customs and courtesies in the course of their
    duties. Termination of their military status requires termination of
    their civilian employment. Unlike ARTs, however, National Guard
    technicians are "nominal federal employees for a very limited
    purpose" and are subject to "the military authority of the states."
    American Federation of Government Employees v. Federal Labor
    Relations Authority, 730 F.2d 1534, 1537-38 (D.C. Cir. 1984). There
    are about 22,408 National Guard technicians in the Air National
    Guard. *See* Strom Thurman National Defense Authorization Act § 413,
    112 Stat. at 1998 (authorizing end strength of military technicians
    in Air National Guard).

[^48]: Of course, the civilian employer of ARTs and National Guard
    technicians is the federal government. ARTS and National Guard
    technicians generally must take leave from their *civilian*
    positions to perform *military* duty (frequently, but not always, in
    the exact same position). Under USERRA, they have the right to
    return to their civilian positions after a period of military duty.
    Presumably, such individuals have little need for the protections of
    USERRA. However, there are various scenarios in which potential
    conflicts may arise. For example, an ART might apply for a position
    on extended active duty (EAD) not related to the military or
    technician duties he usually performs. The person is entitled to be
    reemployed in his ART position, if all other applicable criteria are
    met, upon his return from EAD. *See* 38 U.S.C. § 4312.

[^49]: *See id*. § 4312(a)(1).

[^50]: *See id*. The legal assistance attorney will, of course, want to
    advise clients that written notice specifying the commencement and
    anticipated length of service is preferable.

[^51]: *See id*.

[^52]: 32 C.F.R. § 104.3 (1999). The Department of Defense regulation
    refers to *service officials* who are "authorized by the Secretary
    \[of the military department\] concerned \[to\] provide advance
    notice to a civilian employer" of pending military duty. *Id.* The
    service secretaries are required to designate officials authorized
    to give advance notice to civilian employers. *See* 32 C.F.R. §
    104.6(k). It does not appear that (as of November 1999) the
    Secretary of the Air Force has specifically authorized any
    particular officers or class of officers to give notice. It seems
    reasonable that a commander, first sergeant, or other supervisor is
    authorized by virtue of position to give such notice to the
    employer. Indeed, anyone who is empowered to notify the service
    member/employee should suffice to give notice to the employer.

[^53]: 38 U.S.C § 4312(b).

[^54]: 32 C.F.R. § 104.3.

[^55]: *Id.*

[^56]: *See id*.

[^57]: *See* 38 U.S.C § 4312(a)(3).

[^58]: *Id.* § 4312(e)(1)(A)(i).

[^59]: *See id*.

[^60]: *See id*. § 4312(e)(1)(A)(ii).

[^61]: *See id*. § 4312(e)(1)(B).

[^62]: *See id*. § 4312(e)(1)(C).

[^63]: *See id*. The terms *impossible* and *unreasonable* are not
    defined in the statute. The DOD regulation, however, defines these
    terms together as "the unavailability of an employer or employer
    representative to whom notification can be given, an order by
    competent military authority to report for uniformed service within
    forty-eight hours of notification, or other circumstances that the
    Office of the Assistant Secretary of Defense for Reserve Affairs may
    determine are impossible or unreasonable . . . ." 32 C.F.R. § 104.3.

[^64]: *See* 38 U.S.C. 4312(e)(3). This means, for example, that if the
    employer has a regular application process for all employees
    returning from leaves of absence, the requirements for returning
    military members should not be more burdensome than that regular
    process.

[^65]: That view of service in the Reserve and Guard "fails to
    adequately characterize the contributions and sacrifices made by
    today's Reservists and Guardsmen and women." Cragin ROA Speech,
    *supra* note 14. Mr. Cragin described "a significant and profound
    paradigm shift" with respect to the employment of the Reserve and
    Guard. *Id.* He told the audience of Reserve and Guard officers,
    "You are no longer the force of last resort. You're not weekend
    warriors anymore---you're Total Force warriors! What you do is not
    part-time---you have a full-time commitment to America and to
    America's military." *Id.* As for the term weekend warrior, Mr.
    Cragin said, "I am working hard to get people to stop using \[it\]."
    *Id.*

[^66]: *See* 38 U.S.C. § 4312(e)(1)(D).

[^67]: For an explanation of this term, see *supra* note 44*.* So-called
    traditional Reserve and Guard members (that is, those who are not
    AGRs or technicians) may apply for AGR tours of duty.

[^68]: *See* 38 U.S.C. § 4312(a) ("Any person whose absence from a
    position of employment is necessitated by reason of service in the
    uniformed services shall be entitled to the reemployment rights and
    benefits and other employment benefits of this chapter.").

[^69]: *See id*. § 4312(e)(2)(A).

[^70]: *See id*.

[^71]: *See id.* § 4312(e)(2)(B).

[^72]: For Guard members, *active duty* in this context means only
    active duty under the provisions of Title 10, United States Code,
    and not active duty performed under Title 32, United States Code.

[^73]: For a definition of the meaning of Title 32 status (and Title 10
    status), see *supra* note 44.

[^74]: *See* 38 U.S.C. § 4312(e)(3).

[^75]: *Id.*

[^76]: *See id*. Suppose, for example, that an employer had a rule that
    an employee absent for five consecutive days is deemed to have
    resigned. That rule could be applied to a service member who, after
    a military tour of thirty-five days, failed to submit an application
    for reemployment until nineteen days after his return from duty.

[^77]: *See* 38 U.S.C. § 4312(f)(1)(A). The secretaries of the military
    departments are required to establish procedures to provide this
    documentation. 32 C.F.R. § 104.6(l). It does not appear that as of
    this writing (November 1999) that the Secretary of the Air Force has
    established any particular procedure.

[^78]: *See* 38 U.S.C. § 4312(f)(1)(C). *See also* 38 U.S.C. § 4304
    (person's entitlements under USERRA terminate if separated under
    conditions less than honorable). See the discussion *supra* note 23,
    concerning characterization of discharge.

[^79]: *See* 38 U.S.C. § 4312(a)(2).

[^80]: *See id*. § 4312(c)(1).

[^81]: *See id*. § 4312(c)(3).

[^82]: *See* *id.* The decision of the United States Supreme Court in
    *King v. St. Vincent's Hospital*, 502 U.S. 215 (1991), no doubt
    influenced the drafting of section 4312 to bring AGR tours within
    the five year limitation. In *King*, the Court was called upon to
    construe a now-repealed provision of the former Veterans
    Re-employment Rights Act (VRRA). Petitioner King, a member of the
    Alabama Army National Guard, was employed by a hospital when he
    applied for and was selected to be the Command Sergeant Major at the
    Alabama Army National Guard headquarters. The position was a
    three-year AGR tour. King advised his employer of the tour and
    applied for a leave of absence in July 1987. King, 502 U.S. at
    216-217. King reported for duty at the Army Guard headquarters in
    mid-August 1987. Some weeks later, the hospital notified King that
    his request for a three year leave of absence was "unreasonable" and
    therefore denied the request. *Id*. at 217. Thereafter, the hospital
    sued King in federal court, seeking a declaratory judgment to the
    effect that an employer was not required to re-employ a service
    member/employee whose absence was unreasonably long. At the time,
    there was a split among the circuits as to that issue. The Fifth
    Circuit Court of Appeals had held that the law only protected
    reasonable requests for military leaves. Lee v. City of Pensacola,
    634 F.2d 886 (5th Cir. 1981). The Eleventh Circuit Court of Appeals,
    which had been carved from the old Fifth Circuit and which included
    Alabama, was bound to follow *Lee.* *See* Gulf States Paper Corp. v.
    Ingram, 811 F.2d 1464 (11th Cir 1987). The Third Circuit Court of
    Appeals had also imputed reasonableness into the reemployment rights
    statute. Eidukonis v. Southeastern Pennsylvania Transportation
    Authority, 873 F.2d 688 (3rd Cir. 1989). Conversely, the Fourth
    Circuit Court of Appeals had found no requirement of reasonableness
    in the statute. Kolkhorst v. Tilghman, 897 F.2d 1282, 1286 (4th Cir.
    1990) (stating that reasonableness is not the issue). The Supreme
    Court held that former section 2024(d) placed no limits on the
    length of an AGR tour after which the service member/employee could
    enforce his reemployment rights. King, 502 U.S. at 222. The decision
    was unanimous, though Justice Thomas had been confirmed just prior
    to oral argument and did not participate in the matter.

[^83]: *See* 38 U.S.C. § 4312(c)(4)(A); *see* *also* 10 U.S.C. §§
    672(a), 672 (g), 673, 673b, 673c, 688 (1998).

[^84]: *See* 38 U.S.C. § 4312(c)(4)(B).

[^85]: *See id*. § 4312(c)(4)(C); *see also* 10 U.S.C. § 673b (1998).

[^86]: 38 U.S.C. § 4312(c)(4)(D). A *critical mission* is "\[a\]n
    operational mission that requires the skills or resources available"
    in the Reserve or Guard. 32 C.F.R. § 104.3. A *critical requirement*
    is (1)

    > \[a\] requirement in which the incumbent possesses unique
    > knowledge, extensive experience, and specialty skill training to
    > successfully fulfill the duties or responsibilities in support of
    > the mission, operation or exercise, \[or (2)\] a requirement in
    > which the incumbent must gain the necessary experience to qualify
    > for key senior leadership positions within his or her Reserve
    > component.

    *Id.*

[^87]: *See* 38 U.S.C. § 4312(c)(4)(E); *see also* 10 U.S.C. §§
    331-335*,* 12406 (1998). It should be noted that the section
    4312(c)(4)(E) of USERRA originally cited sections 3500 and 8500 of
    Title 10. Sections 3500 and 8500 were repealed and replaced by
    section 12406 of Title 10 eight days before USERRA became law. See
    Pub. L. No. 103-337, div. A, tit. XVI, § 1662(f)(1), 108 Stat. 2994
    (1998). Note that this refers to federal use of the National Guard
    as the militia for federal purposes. This is distinct from *s*t*ate*
    use of the National Guard for state emergencies or law enforcement.
    State military duty is completed excluded from coverage under
    USERRA.

[^88]: *See* 38 U.S.C. § 4312(d)(1).

[^89]: *See id*. § 4312(d)(2).

[^90]: *See id*. § 4312(d)(1)(A).

[^91]: *See id*. § 4312(d)(1)(B); 38 U.S.C. § 4313(a)(3)-(4) (1998).

[^92]: *See* 38 U.S.C. § 4312(d)(1)(B); 38 U.S.C. § 4313(b)(2)(B)
    (1998). For a comprehensive discussion of this defense, see *infra*
    notes 118-123 and accompanying text.

[^93]: 38 U.S.C. § 4312(d)(1)(C).

[^94]: *Id*. § 4313.

[^95]: 328 U.S. 275 (1946).

[^96]: *Id*. at 284-85 (discussing the reemployment provisions of the
    Selective Training and Service Act). *See* Selective Training and
    Service Act, Pub. L. No. 783, 76th Cong., 2d Sess., 54 Stat. 885
    (formerly codified at 50 U.S.C. app. § 308, *repealed,* Pub. L. No.
    759, § 17, 88th Cong., 2d Sess., 62 Stat. 625 (1948)).

[^97]: 38 U.S.C. § 4313(a)(1)(A).

[^98]: *See, e.g.,* Smith v. Inudstrial Emp. & Dist. Ass'n, 546 F.2d 314
    (9th Cir. 1974).

[^99]: There seem to be no cases in which a returning service member was
    legitimately demoted; however, this outcome is the clear implication
    of the escalator principle.

[^100]: Foster v. Dravo Corp., 420 U.S. 92 (1975); Accardi v.
    Pennsylvania R.R. Co., 383 U.S. 225 (1966); Brooks v. Missouri
    Pacific. R.R. Co., 376 U.S. 182 (1964); Waltermyer v. Aluminum Co.
    of America, 804 F.2d 821 (3rd Cir. 1986); Aiello v. Detroit Free
    Press, Inc. 570 F.2d 145 (6th Cir. 1978); Austin v. Sears, Roebuck &
    Co., 504 F.2d 1033 (9th Cir. 1974).

[^101]: *See* Fishgold, 328 U.S. 275.

[^102]: Alabama Power Co. v. Davis, 431 U.S. 581, 589 (1977) (concluding
    seniority to which returning veteran is entitled is that which it is
    reasonably certain he would have had if continuously employed).

[^103]: McKinney v. Missouri-Kansas-Texas R.R. Co., 357 U.S. 265, 272
    (1958).

[^104]: Alabama Power Co., 431 U.S. at 589.

[^105]: *See* 38 U.S.C. § 4313(a)(1)(B).

[^106]: *See id*. § 4313(a)(2)(B).

[^107]: *Id*. § 4313(a)(2)(A).

[^108]: *Id.*

[^109]: *See id*. § 4313(a)(2)(B).

[^110]: *Id*. Prior versions of the veterans' reemployment law used the
    phrase "position of like seniority, status, and pay," resulting in a
    considerable amount of case law construing the phrase in the context
    of the escalator principle. *See* Smith v. Industrial Emp. & Dist.
    Ass'n, 546 F.2d 314 (9th Cir. 1977) (seniority to be broadly
    construed); Boone v. Ft. Worth & Denver Ry. Co., 223 F.2d 766 (5th
    Cir. 1955) (same position, different hours approved); Meehan v.
    National Supply Co., 160 F.2d 346 (10th Cir. 1947) (title of
    position not controlling).

[^111]: 42 U.S.C. § 12101-12213 (1998).

[^112]: *Id*. § 12111(8).

[^113]: *Id*. § 12111(9).

[^114]: *See id*. § 12102(2)(A).

[^115]: *See id*. § 12102(2)(B)&(C).

[^116]: 38 U.S.C. § 4313(a)(3).

[^117]: *Id*. § 4313(a)(3)(A).

[^118]: *Id*. § 4313(a)(3)(B). An example may be helpful to explicate
    the nature and extent of reemployment rights. Suppose Jones is
    employed as a telephone maintenance team member by Mega Telephone
    Corp. (MTC). He is also a pararescue crewmember with the 129th
    Rescue Wing (ANG). Staff Sergeant Jones volunteers for a 179-day
    deployment to Europe in support of a NATO operation. During the
    operation, Staff Sergeant Jones injures his back while successfully
    recovering a downed F-117A pilot under hostile fire. At the
    conclusion of the deployment, Jones returns to work at MTC, but not
    before he and the other members of his aircrew receive the Air
    Medal. Consider the following scenarios:

    1\. A few weeks after Jones left for overseas, his maintenance team
    supervisor was shifted to another position. Under MTC's established
    personnel policies, Jones would have been selected to fill the
    supervisor's position had he not been absent. Under section 4313 of
    USERRA, he must be reemployed in the supervisor's job, if he is
    qualified for it.

    2\. Since Jones was absent, MTC assigned another employee as
    supervisor of Jones' maintenance team. That person has held the
    position for five months and MTC does not want to reassign him. MTC
    offers Jones a position as supervisor of a different maintenance
    team whose work is performed about thirty to sixty miles away from
    Jones's home. His prior job took him only fifteen to thirty miles
    from home. MTC has satisfied its USERRA obligations.

    3\. After his return home, Jones' doctor tells him that due to his
    back injury, he can no longer climb telephone poles. Team
    supervisors are required to climb telephone poles. MTC offers Jones
    a position as the maintenance team scheduler. The incumbent of this
    position schedules all teams in the region and holds the same grade
    and is paid the same as a team supervisor. MTC has satisfied its
    USERRA obligations.

    4\. The maintenance team scheduler is required to have knowledge of
    the company's computer systems. Jones fails the computer training
    course to which MTC has sent him. MTC then offers Jones a position
    as a maintenance instructor, training maintenance team members. This
    position is one grade lower than the scheduler position. Has MTC
    satisfied its USERRA obligations to Jones?

    This scenario raises several issues. The first is whether MTC has
    made "reasonable efforts" to qualify Jones in the job of scheduler.
    The second issue is whether the job Jones has been offered is "the
    nearest approximation" to the job to which he would have been
    entitled had he qualified. If for some reason Jones is not qualified
    for the supervisor job or, for a reason other than disability, not
    qualified for his previous job, then MTC legally could offer him any
    other position of lesser status and pay for which he is qualified.
    *See* 38 U.S.C. § 4313(a)(4).

[^119]: *See* *supra* notes 106-117 and accompanying text.

[^120]: 38 U.S.C. § 4312(d)(1)(B).

[^121]: *See* 42 U.S.C. § 12112(b)(5)(A) (1998) (unlawful discrimination
    under Americans with Disabilities Act includes failure to make
    reasonable accommodation unless undue hardship shown).

[^122]: *Compare* 38 U.S.C. § 4303(15) *with* 42 U.S.C. § 12111(10).

[^123]: *See* 38 U.S.C. § 4303(15); 42 U.S.C. § 12111(10).

[^124]: *See* 38 U.S.C. § 4312(d)(2) (1998); 42 U.S.C. § 12112(b)(5)(A).

[^125]: The term *military leave* as it is used in this article refers
    to an employee's time off from a civilian job taken to perform
    military duty.

[^126]: 38 U.S.C. § 4316(b)(1)(A).

[^127]: *Id.* § 4316(d).

[^128]: 452 U.S. 549 (1981).

[^129]: *See id.* at 551-52.

[^130]: *See id.* at 552. The Court was construing the 1974 version of
    the reemployment legislation. *See* Vietnam Veterans Readjustment
    Act, *supra* note 7.

[^131]: Monroe, 452 U.S. at 553.

[^132]: *See id*. at 565-66.

[^133]: *See id*.

[^134]: *See id*. at 566 (Burger, C.J., dissenting). Justices Brennan,
    Balckmun, and Powell joined the Chief Justice's dissent.

[^135]: *Id*. at 571.

[^136]: *See* 38 U.S.C. § 4316(a)-(b); Vietnam Veterans Readjustment
    Act, *supra* note 7.

[^137]: 38 U.S.C. § 4316(a).

[^138]: *See* *supra* notes 93-117 and accompanying text.

[^139]: 38 U.S.C. § 4316(b)(1).

[^140]: *See id*. § 4316(b)(1)(B).

[^141]: *See id*. § 4316(b)(3).

[^142]: *See id*. § 4317.

[^143]: *See id*. § 4317(a)(1)(A).

[^144]: *See id*. § 4317(a)(1)(B).

[^145]: *See id*.

[^146]: *See id*. § 4317(b)(1).

[^147]: *See id*. § 4317(b)(2).

[^148]: *See id*. § 4318(a)(2).

[^149]: *See id*. § 4318(b)(2).

[^150]: *See id*.

[^151]: [Mark A. Rothstein & Lance Liebman]{.smallcaps}, [Employment
    Law]{.smallcaps} 9 (4th ed. 1998).

[^152]: A detailed explanation or recitation of those exceptions is
    beyond the scope of this article. For a discussion of the employment
    at will doctrine and its attendant exceptions, see generally *id.*
    at 912-962.

[^153]: 38 U.S.C. § 4316(c)(1).

[^154]: *See id*. § 4316(c)(2).

[^155]: There appear to be no cases precisely on point concerning
    demotions under USERRA; however, given the broad construction to be
    given the statute, it would not be sensible for a court to allow a
    service member/employee to be demoted during the special protection
    period.

[^156]: Consider the following scenario: Joe and Mary are both employed
    by Falcon Airlines in its maintenance department. Joe is also a crew
    chief with the 940th Air Refueling Wing (AFRC). Likewise, Mary is an
    avionics technician in the 940th.

    In 1998, Staff Sergeant Joe performs the following duty, for which
    he is absent from Falcon Airlines: January 5-19 - annual training,
    Beale AFB, for fifteen days; February 23-28 - prepare for
    operational readiness exercise, Beale AFB, for six days; March
    14-19 - operational readiness exercise, Mountain Home AFB, for seven
    days; May 10-24 - temporary duty in support of Operation Northern
    Watch, RAF Mildenhall, for fifteen days; July 7-16 - temporary duty
    to McConnell AFB (to backfill temporary shortage), for nine days;
    August 7-18 - support embassy recovery mission in Kenya and Tanzania
    for twelve days; September 22-25 - Central America hurricane relief
    mission for four days; November 3-12 - classified mission in a
    classified location for ten days. As a result, his total days absent
    for military duty is seventy-eight days. In December, Joe is demoted
    from shift leader by Falcon Airlines with no reason given. USERRA
    provides him no recourse.

    On the other hand, in 1999, Staff Sergeant Mary performs the
    following duty: March 10-May 8 - support Operation Allied Force for
    sixty days; May 11-25 - annual training, Beale AFB, for fifteen
    days. As a result, her total days absent for military duty is
    seventy-five days. Mary cannot be discharged or demoted by Falcon
    Airlines except for cause for a period of six months because one of
    her tours was more than thirty days and less than 180 days.

[^157]: 38 U.S.C. §§ 4303(11), 4321 (1998).

[^158]: *Id*. § 4321. VETS informs and educates employees and employers
    about the provisions of USERRA. It also investigates and mediates
    USERRA issues. Legal assistance attorneys should refer to the VETS
    "USERRA Advisor" available at http://www.dol.gov/elaws/userra0. htm.

[^159]: *See* 38 U.S.C. § 4322.

[^160]: *See id*. § 4322(d).

[^161]: *See id*. § 4326.

[^162]: *Id.* § 4322(d).

[^163]: *See id*. § 4322(e).

[^164]: *See id*. § 4323(a)(2)(B). In fact, unlike the Title VII
    procedure, filing a complaint with the Secretary of Labor is not a
    prerequisite to an employee's suit against a private employer. *See*
    *id.* § 4323(a)(2)(A).

[^165]: *See id*. § 4323(a)(1).

[^166]: *See id*. § 4323(a)(2)(C).

[^167]: *See id*. § 4323(c)(2)(A).

[^168]: *See id*. § 4323(c)(6).

[^169]: *See id*. § 4323(c)(5). This is an exception to the usual rules
    of joinder. *See* [Fed. R. Civ. P]{.smallcaps}. 19.

[^170]: 38 U.S.C. § 4323(c)(4). This provision would prevent an employer
    from seeking declaratory relief as did the employer in *King v. St.
    Vincent's Hospital*, 502 U.S. 215 (1991). See *supra* note 81 and
    accompanying text.

[^171]: *See* 38 U.S.C. § 4323(c)(1)(A).

[^172]: *See id*. § 4323(c)(1)(A)(iii).

[^173]: *Id*. § 4323(c)(3).

[^174]: *See id*. § 4323(c)(2)(B).

[^175]: *See* *id*. § 4303(4)(A)(iii) (*employer* defined to include a
    state); *id*. § 4323(c)(7) (noting that states subject to same
    remedies as private employers).

[^176]: \_\_\_U.S.\_\_\_, 119 S.Ct. 2240, 144 L.Ed. 636 (1999).

[^177]: 517 U. S. 44 (1996).

[^178]: U.S. [Const.]{.smallcaps} art. I.

[^179]: U.S. [Const]{.smallcaps}. amend XI.

[^180]: *See, e.g.,* Velasquez vs. Frapwell, 160 F.3d 389 (7th Cir.
    1998) (holding that the Eleventh Amendment bars a suit brought
    against the state under USERRA), *vacated in part on other grounds*,
    165 F.3d 593 (7th Cir. 1999).

[^181]: Pub. L.No. 105-368, § 211, 112 Stat. 3315 (1998) (amending 38
    U.S.C. § 4323).

[^182]: 29 U.S.C. § 201-219 (1998).

[^183]: *Id*. § 203. In 1976, the Supreme Court decided that the
    application of FLSA to the states was a violation of the Tenth
    Amendment. *See* National League of Cities v. Usery, 426 U.S. 833
    (1976). By 1985, however, the Court was of the opposite opinion.
    *See* Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.
    528 (1985).

[^184]: Alden's suit was first brought in the federal district court and
    dismissed based on the Supreme Court's holding in *Seminole Tribe of
    Florida v. Florida,* 517 U.S. 44 (1997). *See* Mills v. Maine, 118
    F.3d 37 (1st Cir. 1997). The case was then filed in the state court.
    Alden, \_\_\_ U.S. at \_\_\_, 119 S.Ct. at 2246, 144 L.Ed. at 652.
    The FLSA purportedly confers jurisdiction on state courts to hear
    certain FLSA suits. *See* 29 U.S.C. § 216(b).

[^185]: Alden, \_\_\_U.S. at \_\_\_, 119 S.Ct. at 2246. 144 L.Ed. at
    652.

[^186]: *See* Alabama v. Pugh, 438 U.S. 781 (1978) (finding that
    Eleventh Amendment applied in context of 42 U.S.C. § 1983).

[^187]: 38 USC § 4303(4)(A)(i).

[^188]: *Id*. § 4303(4)(A)(ii) (employer defined to include federal
    government).

[^189]: Douglas J. Gillert, *Rules Adapted To Protect Reservists\'
    Government Jobs*, [American Forces Press Service,]{.smallcaps} (Aug.
    4, 1999) \<http://www.defenselink.mil:80/news/Aug1999/
    n08021999-9908026.html\>. American Forces Press Service is part of
    the DOD-operated American Forces Information Service which supplies
    news to both civilian media outlets and military base newspapers.
    The Ready Reserve is made up of National Guard and Reserve units,
    AGR personnel, and Individual Mobilization Augmentees (IMAs---known
    in the Air Force as "Category B" Reservists). 10 U.S.C. § 10142
    (1998).

[^190]: 38 U.S.C. § 4301(b). The Office of Personnel Management (OPM) is
    authorized to promulgate regulations implementing USERRA with
    respect to federal executive agencies. *Id*. § 4331(b)(1). The OPM
    has such regulations, though the regulations largely duplicate the
    statute and are not independently useful. *See* 5 C.F.R. pt. 353
    (1999).

[^191]: Memorandum from the Honorable William S. Cohen, Secretary of
    Defense & the Honorable Alexis M. Herman, Secretary of Labor, for
    Members of the Cabinet, Promoting the Federal Government as a "Model
    Employer" of National Guard and Reserve Members (July 6, 1998).

[^192]: David Castellon, *Reservists' Complaints Against Their Employers
    Increase*, [A.F. Times]{.smallcaps}, Aug. 9, 1999, at 22.

[^193]: *Id.*

[^194]: *See* 38 U.S.C. § 4325. The exempt intelligence agencies are
    those that are generally exempt from the merit protection provisions
    of Title 5 of the United States Code. *See* 5 U.S.C. §
    2302(a)(2)(C)(ii) (1999).

[^195]: *See* 38 U.S.C. §§ 4315, 4325.

[^196]: *See id*. § 4322(a)(2)(B).

[^197]: *See id*.

[^198]: *Id.* § 4322(d).

[^199]: *See id*. § 4322(e).

[^200]: *See id*. § 4324(b).

[^201]: *See id*. § 4324(a).

[^202]: *See id*. § 4324(b)(4).

[^203]: *Id.* § 4324(c)(2).

[^204]: *See id*. § 4324(c)(4).

[^205]: *See id*. § 4324(d)(1).

[^206]: *Id*. § 4324(d)(2).

[^207]: *See, e.g.,* [Ala. Code]{.smallcaps} § 31-2-13 (1995); [Alaska
    Stat]{.smallcaps}. § 39.20.350 (Michie 1992); [Arizona Rev.
    Stat.]{.smallcaps} §§ 26-167, 26-168 (1991); [Ark. Code
    Ann]{.smallcaps}. § 21-4-212 (Michie 1992); [Cal. Mil. & Vet.
    Code]{.smallcaps} §§ 394\--395.9 (West 1988); [Colo. Rev.
    Stat]{.smallcaps}. §§ 24-50-301, 28-3-609 (1998); [Conn. Gen. Stat.
    Ann]{.smallcaps}. § 27-59 (West 1990); [Fla. Stat. Ann]{.smallcaps}.
    §§ 115.09, 295.09 (West 1996); [Ga. Code Ann]{.smallcaps}. §§
    38-2-279, 38-2-280 (1995); 10 [Guam Code Ann]{.smallcaps}. § 63105
    (1996); [Haw. Rev. Stat]{.smallcaps}. § 79-20 (1993); [Idaho
    Code]{.smallcaps} § 46-407 (1999); 20 [Ill. Comp. Stat.
    Ann]{.smallcaps}. § 1805/100 (West 1993); [Ind. Code
    Ann]{.smallcaps}. §§ 10-2-4-3, 10-2-4-3.5 (West 1982); [Iowa Code
    Ann]{.smallcaps}. §§ 29a.28, 29a.43 (West 1995). [Kan. Stat.
    Ann]{.smallcaps}. §§ 44-1125 *et seq.* (1993). [Ky. Rev. Stat.
    Ann.]{.smallcaps} 38.238 (West 1999); [La. Rev. Stat.
    Ann]{.smallcaps}. §§ 29:38, 29:38.1 (West 1989); [Me. Rev. Stat.
    Ann]{.smallcaps}., Tit. 37-B, § 342 (West 1989); [Mass. Gen. Laws
    Ann]{.smallcaps}. Ch. 33, § 13 (West 1988); [Mich. Comp. Laws
    Ann]{.smallcaps}. §§ 35.352---35.354 (West 1991); [Minn. Stat.
    Ann]{.smallcaps}. §§ 192.32, 192.34 (West 1992); [Miss. Code
    Ann]{.smallcaps}. §§ 33-1-19, 33-1-21 (1990); [Mo. Rev.
    Stat]{.smallcaps}. § 41.730 (1998); [Mont. Code Ann]{.smallcaps}. §§
    10-1-603, 10-1-604 (1998); [Neb. Rev. Stat]{.smallcaps}. §§
    55-160---55-166 (1998); [Nev. Rev. Stat]{.smallcaps}. §§ 412.139 *et
    seq.* (1998); [N.H. Rev. Stat. Ann.]{.smallcaps} §§ 110B:65, 112:8
    (1990); [N.J. Stat. Ann]{.smallcaps}. § 38a:4-4 (West 1968); [N.M.
    Stat. Ann]{.smallcaps}. §§ 20-4-6, 20-4-7 (Michie 1989); [N.Y. Mil.
    Law]{.smallcaps} §§ 242---244, 252 (Mckinney 1990); [N.C. Gen.
    Stat.]{.smallcaps} § 127a-116 (1986); [Ohio Rev. Code
    Ann]{.smallcaps}. § 5903.02 (1993); [Okla. Stat. Ann.
    Tit]{.smallcaps}. 44, § 209 (West 1996); [Ore. Rev. Stat.
    Ann.]{.smallcaps} §§ 408.240---408.270 (Butterworth 1994); 51 [Pa.
    Cons. Stat. Ann.]{.smallcaps} § 4101---4102 (West 1976); [P.R. Laws
    Ann.]{.smallcaps} Tit. 25 § 2089 (1979); [R.I. Gen.
    Laws]{.smallcaps} §§ 30-11-1---30-11-9 (1994); S.C. Code Ann. §§
    25-1-2250, 25-1-2310---25-1-2340 (Law. Co-Op. 1989); [Tenn. Code
    Ann]{.smallcaps}. § 8-33-101 *et seq.* (1993); [Tex. Gov't Code
    Ann.]{.smallcaps} §§ 431.005, 431.006 (West 1998); [Utah Code
    Ann]{.smallcaps}. §§ 39-3-1, 39-3-2 (1998); [Va. Code
    Ann]{.smallcaps}. § 44-98 (Michie 1994); [V.I. Code
    Ann.]{.smallcaps} Tit. 23, § 1531 (1993); [Wash. Rev. Code
    Ann]{.smallcaps}. §§ 38.40.060, 38.40.110 (West 1991); [W.Va.
    Code]{.smallcaps} §§ 15-1F-1, 15-1F-8 (1995); Wyo[. Stat.
    Ann]{.smallcaps}. §§ 19-11-104---19-11-114 (Lexis Law Pub. 1999).

[^208]: *See, e.g.*, [Alaska Stat]{.smallcaps}. § 39.20.350.

[^209]: *See, e.g*., [Me. Rev. Stat. Ann]{.smallcaps}. Tit.37-B, § 342.

[^210]: *See, e.g*., [Cal. Mil. & Vet. Code]{.smallcaps} § 394.

[^211]: *See* 38 U.S.C. § 4302(a).

[^212]: U.S. [Const.,]{.smallcaps} art. VI, cl. 2 ("\[T\]he Laws of the
    United States . . . shall be the supreme Law of the Land . . . .");
    *see also* 38 U.S.C. § 4302(b).

[^213]: *See* *supra* notes 174-186 and accompanying text.

[^214]: In some situations, there are substantial and direct benefits to
    the federal government provided by National Guard members in state
    active duty status. An example is found in the fact that the
    federally owned assets (principally the aircraft) at the four
    California Air National Guard flying wings are protected 24 hours
    day by firefighters who are all state active duty personnel. Some of
    the personnel in California's four security forces squadrons are
    also state active duty personnel. Without examining personnel
    records, it would be impossible to distinguish state active duty
    personnel from the technicians, AGRs, and traditional Guard members
    working along side them. It seems inequitable not to extend federal
    protection to state active duty personnel under the circumstances.
    Fortunately, most state laws are sufficient for that the purpose.

[^215]: Air Force Instruction 51-504, Legal Assistance ¶ 1.3.1 (May 1,
    1996). The Army also places a great deal of importance on
    USERRA-related legal assistance. *See* Army Regulation 27-3, The
    Army Legal Assistance Program ¶ 3-6e (Sep. 10, 1995).

[^216]: The Department of Defense has provided a sample notification to
    employers in the its USERRA regulations. *See* 32 C.F.R. pt. 104,
    app. B (1999).

[^217]: *See* Air Force Instruction 51-504, Legal Assistance, Notary,
    and Preventive Law Programs (May 1, 1996).