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Follow law precisely and it will protect your civilian job

Congress enacted the Uniformed Services Employment and Reemployment Rights Act in 1994 as a long-overdue rewrite of the Veterans’ Reemployment Rights Act.

Like that earlier law, USERRA applies to essentially all employers in this country, including the federal, state and local governments, and private employers, regardless of size.

Contrary to what some may tell you, USERRA applies to voluntary as well as involuntary military service. This law is important and relevant, now more than ever, because more than 1.2 million National Guard and reserve members have been mobilized since the terrorist attacks of Sept. 11, 2001.

To have the right to re-employment under USERRA, five simple conditions apply:

• You must have left your civilian job to perform voluntary or involuntary service in the military. This can be anything from a drill weekend up to five years of active service, and you must have given your employer prior oral or written notice.

• Your cumulative period or periods of service must not have exceeded five years with that employer.

• You must have been released from the period of service without having received a punitive (by court-martial) or other-than-honorable discharge.

• You must have made a timely application for reemployment with the pre-service employer after your release from service.

• If the period of service was more than 180 days, you have 90 days to apply for re-employment. Shorter deadlines apply after shorter periods of service.

We have heard from a number of Guard and reserve members who have been on active duty repeatedly (sometimes voluntarily, sometimes not) since Sept. 11, 2001. If you plan to do repeated tours, you need to stay aware of what counts toward your five-year limit.

Basically, if the service is involuntary, it is exempt from the five years. Some voluntary service is also exempt (such as most service in Afghanistan, Cuba, and Iraq/Kuwait) but as a loose rule with many exceptions you should consider all voluntary service as nonexempt.

The issue of what kinds of duty are exempt from the five-year limit is currently before the U.S. Court of Appeals for the Federal Circuit in Washington in a case I am litigating.

I see it as an improper firing by the U.S. Postal Service of an Army National Guard Special Forces sergeant major from Florida. This individual earned a Silver Star and two Bronze Star medals (one for valor) in Afghanistan, but because of his wartime service and extensive military training time, he is accused of exceeding five years of military service for USERRA purposes.

In the next few months, the court will clarify the exemption provision of the five-year rule because of this landmark case.

If you meet the five USERRA conditions, including the five-year limit, your pre-service employer has the legal obligation to promptly re-employ you upon your return, even if that means displacing another employee.

Moreover, the employer must treat you, for seniority and pension purposes, as if you had been continuously employed during the time you were away from work for service.

You have a lot at stake here. If you inadvertently go over the five-year limit or fail to meet any eligibility condition, you will not have the right to re-employment. It is important to know how USERRA protects you and your financial security when you are called to military duty.

Many of the above tips on USERRA come to me from retired Navy Capt. Sam Wright, now a law partner of mine in Washington. I probably wouldn’t be a lawyer today if it were not for Sam’s advice on USERRA and because of unlawful violations of USERRA that I suffered when I was a law enforcement officer with the Justice Department.

In my case, I was able to recover a large cash settlement that allowed me to pay for attending Brooklyn Law School. Thanks to that law degree, I am active in making sure USERRA not only stays strong but gets stronger by making it work better for the many service members who put so much on the line for our country.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.