USERRA Protections

[mightymighty]

Update: After TFOT I found out I had an 8 month gap between graduation and the start of UPT (starting this June at Vance) So I had to get another job to cover my gap.

I ended up finding an employer in the finance industry that has a great military leave program and I met a few employees who have used it before in the guard with no issues. In other words, everything worked out great. Thanks again for the support.

[JKA360]

Hypothetical question from an aspiring part timer currently working as a full time civilian:

Suppose I work for Company X and in that time that I work there, I join the ANG and go off to UPT for 2+ years. My understanding is Company X can't fire me while I am gone, because USERRA.

Let's assume I return to Company X and a few weeks or months later Company Y approaches me and makes me an offer I can't refuse.  I accept their offer and go work for Company Y now. Are there any legal implications with Company X at that point? I mean they were keeping my job for my return while I was gone for training right? So leaving because someone else offered me more money or a better position might look shitty. Can Company X take legal action for something like this? not so much because I went to UPT for 2 years, but for essentially calling dibs on a job in their company for 2+ years and then leaving shortly after.

I'm really just wondering this as a CYA? I am in no ways planning on leaving my current employer, however, I don't have a crystal ball either. I know my career field is high in demand, and if something comes along that is just a better overall fit for me, it would be dumb to pass it up.

[Guardian]

Not sure I completely understand your question. USERRA makes you working for the military retribution free for 5 years. Unless on orders that are USERRA exempt. Like STAT tours or training orders. Heres another thing. The protection is per company.

Let’s say you take a job at company x then get orders for 5 years. You get to go back to your job and not get fired from anywhere from 1 day to 5 years cumulative. Doesn’t reset if you go to do military orders then go to the company then go back to the military. You have 5 years total for company x.

Now what if after doing your 5 years you go back to company x for a year and company y comes calling? You get hired and work for company y now. You now have 5 more years of protection from getting fired from company y.

Does that answer your question?

[JKA360]

26 minutes ago, Guardian said:

Now what if after doing your 5 years you go back to company x for a year and company y comes calling? You get hired and work for company y now. You now have 5 more years of protection from getting fired from company y.

Does that answer your question?

Not really. Your question answer seems to be more about the cumulative 5 year protection, that part is clear to me. My question has more to do with possible legal action from a company if you decide to leave them after they have been keeping your seat warm while you were gone doing flight training for 2 years.

To simplify

• I work at Company X and I am picked up by a unit to become a Pilot.
• I take a 2.5 year hiatus with Company X so I can go to TFOT, UPT, Seasoning, etc. all the while Company X has a job lined up for me once I am back to part time status 
• I return to company X and start working full time (while also doing part time flying drills at the unit) 
• Company Y (completely different company) comes along and offers me a job. I take that job because I like it
• Can company X take any legal action against me for leaving them for another job after they basically kept my spot open for my return?

Edited March 24, 2021 by JKA360
Meant to say "answer" in my response not "question"

[Guardian]

Sorry. I don’t know the answer to that. I’ve never heard anything like that.

I can’t imagine they would have any leverage or proof. Especially if it was in good faith. Like you didn’t go on your company x hiatus with no intention of ever coming back and talked to everyone about how you were screwing them over. Even then I can’t imagine that they would find a judge willing to get a military member who followed the rules in trouble.

But I’m not sure.

[Tank]

On 3/24/2021 at 10:04 AM, JKA360 said:

Not really. Your question answer seems to be more about the cumulative 5 year protection, that part is clear to me. My question has more to do with possible legal action from a company if you decide to leave them after they have been keeping your seat warm while you were gone doing flight training for 2 years.

To simplify

• I work at Company X and I am picked up by a unit to become a Pilot.
• I take a 2.5 year hiatus with Company X so I can go to TFOT, UPT, Seasoning, etc. all the while Company X has a job lined up for me once I am back to part time status 
• I return to company X and start working full time (while also doing part time flying drills at the unit) 
• Company Y (completely different company) comes along and offers me a job. I take that job because I like it
• Can company X take any legal action against me for leaving them for another job after they basically kept my spot open for my return?

Unless you signed a contract with Company X and you’re under contract when you leave them for Company Y, there should be no legal recourse.  

USERRA is there to protect the individual, not the company.  
 

You see this a lot in the airline industry.  Fly’s for a Company, goes on military orders and is USERRA protected but never goes back to the Company for whatever reason.  No formal recourse against the individual.  

[Ryder1587]

If your are an ART do you get protections since you’re also a TR technically ?  IE can you drop mil leave after being at an airline for an ART job?

[Guardian]

No. ART isn’t mil. ART is civil servant. I don’t believe a civil servant can do that.

[Stoker]

11 hours ago, Ryder1587 said:

If your are an ART do you get protections since you’re also a TR technically ?  IE can you drop mil leave after being at an airline for an ART job?

Explicitly not.

[yervis]

Reading the U.S. Department of Labor’s Fact Sheet 3 for USERRA it states:

”USERRA establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years (the previous law provided four years of active duty, plus an additional year if it was for the convenience of the Government). There are important exceptions to the five-year limit, including initial enlistments lasting more than five years, periodic National Guard and Reserve training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service as long as the basic eligibility criteria are met.”

Would the weekend Unit Training Assemblies every month be considered “periodic National Guard and Reserve training duty”?

What about the additional days a pilot would be at the unit working that do not fall on days that are a UTA?

Are seasoning orders considered exempt from the 5 year time like all the initial training (OTS+UPT, et cetera) is?

[brabus]

Yes they are exempt. See bullet e of the attached memo. 

SAF MR USERRA Memo July 2017.pdf

[yervis]

48 minutes ago, brabus said:

Yes they are exempt. See bullet e of the attached memo. 

SAF MR USERRA Memo July 2017.pdf 238.51 kB · 1 download

Exactly the sort of guidance I was looking for. Thanks @brabus.

[FDNYOldGuy]

On 6/8/2021 at 6:33 PM, yervis said:

Are seasoning orders considered exempt from the 5 year time like all the initial training (OTS+UPT, et cetera) is

I actually just looked at my seasoning orders and saw that they did NOT have the USERRA 5-year limit exempt verbiage that my OTS/SERE/UPT/FTU orders had. I thought because it was still a "School" order and still part of the training pipeline that it would be, but perhaps not. It could be a box just not checked when the orders were written, but I'm not sure. YMMV.

EDIT: Read through the SAF MR posted by Brabus and, from the way I read it, seasoning should be exempt, but my brain is a bit mushy currently.

Edited June 9, 2021 by FDNYOldGuy
Read above posted MR

[brabus]

@FDNYOldGuy Common error on orders. Go to MPF with a copy of the USERRA memo and show them the exact verbiage that must be put on your amended orders. I’ve had to do this 2 times in the last 3 years. If they push back, get your SQ/CC involved. 

Edited June 9, 2021 by brabus

[FDNYOldGuy]

Thank you for the help and advice, as always, @brabus 

@Desk Jobs Suck, I just looked back through my UPT orders/mods and I don’t see anything about them being “Voluntary” written anywhere.

I’d guess they won’t be too crazy about picking up on that piece, but it’ll totally depend on your employer. If they go for it, it’s ~2-2.5 years worth of training/differential pay, so it’s definitely a huge help if you can make it happen. 

[ryleypav]

9 hours ago, Desk Jobs Suck said:

Thanks for taking a look! Might just have to switch to another employer who is willing to offer differential for OTS/UPT/seasoning instead of hoping and praying. Honestly a little surprised no defense contractors are willing to do it except Lockheed. 

Thats a long time to pay someone who isn't providing the company anything. I get what you're saying, but also understand it from the companies side. 

[jazzdude]

Thats a long time to pay someone who isn't providing the company anything. I get what you're saying, but also understand it from the companies side. 

Maybe Lockheed is just better at burying those costs and indirectly passing it on to the government.

[UPTapplicant96]

Reading through this old thread, Raytheon Technologies offers diff pay. So does Boeing I believe.

[Bobsan]

Are airline nonrev flight benefits and CASS status protected under USERRA, or do airlines who keep your flight benefits active during military leave choose to do so to be nice?

[mcbush]

Looking for some thoughts about whether I should engage with my airline on a potential USERRA issue, or just let it go. I posted something similar on another forum but I'm sure we have more USERRA experience here. 

The crux of the situation is that our contract says you get additional pay if you pick up an assignment early on your first day of a reserve block. More specifically, it says you get the add pay if the early assignment is on the first day following a "day off," and then goes on to exclude mil leave from the definition of a day off.

This led me to a situation where on day X, I had no obligation to the company and performed mil duty, and then picked up an early assignment the following morning on my first day back on reserve. 

Company says no soup for you... mil leave is not a "day off," and therefore you don't get the pay.

My issue with that is that if I had done nothing on day X and that day had remained a true "day off," I'd be getting the pay... but because I performed military service, I lose the pay. To me, that concept runs afoul of USERRA. The relevant part of the law (38 USC 4311) says:

"a person who is a member of... a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation."

38 USC 4303 defines a "benefit of employment" as:

"the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract..."

I spoke with a mil affairs guy at our union, and he seemed to think that this would probably be a losing argument, and that it certainly wouldn't be worth the hassle in any case. He's probably right, at least on the second part. We're only talking about $200 here (at least this time), so it's not like my family is going to starve to death if I don't pursue it, although I'm sure there are others that would be impacted by the same thing over the years and maybe the cumulative effect is significant... who knows.

I'm just not sure if the juice is worth the squeeze. Anyone have experience fighting a similar righteous crusade under USERRA? Any words of wisdom? Mostly just curious if y'all would dig in or just crack a beer and forget it.

Edited March 7 by mcbush

[SurelySerious]

Looking for some thoughts about whether I should engage with my airline on a potential USERRA issue, or just let it go. I posted something similar on another forum but I'm sure we have more USERRA experience here. 
The crux of the situation is that our contract says you get additional pay if you pick up an assignment early on your first day of a reserve block. More specifically, it says you get the add pay if the early assignment is on the first day following a "day off," and then goes on to exclude mil leave from the definition of a day off.
This led me to a situation where on day X, I had no obligation to the company and performed mil duty, and then picked up an early assignment the following morning on my first day back on reserve. 
Company says no soup for you... mil leave is not a "day off," and therefore you don't get the pay.
My issue with that is that if I had done nothing on day X and that day had remained a true "day off," I'd be getting the pay... but because I performed military service, I lose the pay. To me, that concept runs afoul of USERRA. The relevant part of the law (38 USC 4311) says:
"a person who is a member of... a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation."
38 USC 4303 defines a "benefit of employment" as:
"the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract..."
I spoke with a mil affairs guy at our union, and he seemed to think that this would probably be a losing argument, and that it certainly wouldn't be worth the hassle in any case. He's probably right, at least on the second part. We're only talking about $200 here (at least this time), so it's not like my family is going to starve to death if I don't pursue it, although I'm sure there are others that would be impacted by the same thing over the years and maybe the cumulative effect is significant... who knows.
I'm just not sure if the juice is worth the squeeze. Anyone have experience fighting a similar righteous crusade under USERRA? Any words of wisdom? Mostly just curious if y'all would dig in or just crack a beer and forget it.

If it was a day of Mil Leave, seems like it wouldn’t meet the company’s “day off” definition. Did you drop ML on a day that was off?

[mcbush]

10 minutes ago, SurelySerious said:

If it was a day of Mil Leave, seems like it wouldn’t meet the company’s “day off” definition. Did you drop ML on a day that was off?

Correct, it was essentially mil leave on a day that otherwise would have been a day off, which then didn't meet their "day off" definition.

In any case, I just talked to our head mil affairs guy, and based on his advice and experience, it sounds like this would be a losing battle and an unbelievable hassle to pursue, just like the first guy said. Going to wave the white flag on this one.

[nunya]

1 hour ago, mcbush said:

Any words of wisdom? Mostly just curious if y'all would dig in or just crack a beer and forget it.

If your rep guy says leave it alone, I'd leave it alone. Not worth the gray hairs. And I'd quit posting mloa on my off days. Unless you're removing yourself from something or blocking something, the company doesn't need to know when you do mil.