Throughout its history, the United States government has enacted legislation protecting the men and women who serve in times of armed conflict. During the Civil War,Congress passed legislation protecting service members from legal proceedings they could not attend due to their military commitment. Congress passed the Soldiers’ and Sailors’ Civil Relief Act during World War I as a means of offering similar protections to service members fighting in Europe. Shortly before the United States entered World War II, Congress passed the Selective Training and Service Act of 1940.

The rationale behind the law lay partly in providing a means for drafted individuals to return to their jobs at the cessation of hostilities. After the war, the United States Supreme Court upheld the spirit of the law’s protections in Fishgold v. Sullivan Drydock 328 U.S. 275,284 (1946) when it held that the Act allowed the reemployment of an employee drafted to fight in World War.

The Supreme Court in Fishgold not only allowed the reemployment of a service person but also held that, with regards to advancement opportunities the service person missed while serving abroad, the service person “step[ped] back on at the precise point he would have occupied had he kept his position continuously during the war.” The Court further held that the Act be “liberally construed” to aid those who left their occupations to serve their country during a time of great peril. The Court rationalized its holdings by stating that a citizen called to defend the United States should not, upon discharge, be hindered from advancement in their civilian job because of the service-related absence. The Court further noted that the returning veteran was “to gain by his service for his country an advantage which the law withheld from those who stayed behind.”

The holding, requiring that legislation providing protections to uniformed service members be “liberally construed,” is affirmatively followed by courts and the Department of Labor in construing USERRA today.

At the end of World War II, a federal court in the State of Washington decided a case similar to Fishgold. In Niemiec v. Seattle Rainier Baseball Club, Inc., 67 F. Supp. 705, 711 (W.D. Wash. 1946), the court applied Fishgold’s holding by requiring a professional baseball club (now the Seattle Mariners) to rehire a former player who was absent from the team for three years because of World War II required service. While acknowledging “the seriousness to baseball of having the judge dictate as to the team’s] players,” the judge concluded his opinion stating that had the veteran and his comrades failed in their service overseas “there would be no American manager of any baseball if such should be played at the stadium this year. If the Nazis permitted baseball, it would not be an exhibition that any of us liked.”

As the threat of the Axis powers passed, Congress used the geopolitical realities of the Cold War to justify further veteran-friendly legislation. During the Cold War, the Selective Service and Training Act of 1940 underwent a series of modifications including the Selective Service Act of 1948 and the Universal Military Training and Service Act of 1967. The protections set out in the Selective Service and Training Act of 1940 generally remained the same while the modifications supported the conscript-based military of the Cold War era.

Reservists received their first affirmative statutory protection as part of an amendment to the Military Selective Service Act in 1968 often referred to as the Veterans’ Reemployment Rights Act (“VRRA”). The VRRA protects reservists against reemployment discrimination caused by their military duty. The Veterans’ Readjustment Assistance Act of 1974 re-codified provisions of VRRA but included similar provisions protecting reservists from employment discrimination with an emphasis on inducing individuals separating from active military service to serve in the reserve components of the post-Vietnam all volunteer military.

Congress, in enacting these protections, recognized reservists were experiencing increased discrimination from employers because reservists were required to “attend weekly drills or summer training. Expanding VRRA legislation to cover reservists soon led to legal battles regarding the statute’s scope and the burden of proof a reservist/employee must show to establish discriminatory action by an employer due to an employee’s reserve status.

The Supreme Court addressed VRRA’s burden of proof standard in Monroe v. Standard Oil Co., 452 U.S. 459, 551, 559-560 (1981). The Court held that in order for a reservist/employee to prove that an employer violated the VRRA, the reservist/employee must show the employer’s discriminatory actions against the reservist/employee were “motivated solely by reserve status.” The Court’s holding in Monroe resulted in the enactment of USERRA, which was written, in part, to overrule Monroe’ burden of proof requirement. The burden of proof under USERRA today is much easier.

USERRA, which was passed in 1994, provides many protections. Two of those protections are protection against discrimination and protection of one’s pre-deployment job.

1. Protection against discrimination.

Today a reservist alleging discrimination under USERRA must only show that his or her military service “played a part” or was a “motivating factor” in the employer’s adverse decision. Since employers will rarely tell reservist/employees that they are being fired because of their military service, USERRA allows a party to establish discrimination by, among other things, examining the proximity in time (shorter being better) between the adverse act (like firing) and the military service (like telling your boss you have military duty), whether the employer followed its internal policies, and whether you were treated differently than other non-military employees.

2. Protection of your pre-deployment job.

Under USERRA you are supposed to get your pre-deployment job back when you come home. But, in order to ensure this protection, USERRA requires that you (1) be in the military (2) give your employer advance notice of your military obligation, (3) serve less than five years (this requirement has many exceptions to it so even if your service was beyond five years you may likely enjoy USERRA’s protections), (4) receive an honorable discharge, and (5) give your employer timely notice of your intent to come back to your job.If you meet (1) through (5) then your employer should give you your pre-deployment job back i.e., the job you would have occupied had you never deployed. If your employer cannot do this then your employer must find you another job for which you are qualified. If your employer cannot find you another job then it must take reasonable steps to train you so you become qualified. At the end of the day, the job you come back to should have the same seniority, status, and pay as the job you left. USERRA does allow an employer to exempt itself from the re-employment provisions under certain circumstances; however, such circumstances are rare.
Sam Wright, a retired U.S. Navy JAG lawyer who assisted in writing USERRA, has an article on the history of USERRA that is available here.
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