Military Law, Military Law Advice, Ask a Lawyer - Army Times

How USERRA protects National Guard technicians

Dipping into the mail bag this week:

Q: I am a National Guard technician. How does the Uniformed Services Employment and Reemployment Rights Act apply to me?

A: Section 4311(a) of USERRA does not distinguish between the National Guard and the Reserves. The term “reservist” refers to any member of the National Guard or Reserve. As a National Guard technician, USERRA provides the same protections to you as any other member of the armed forces. Section 4311(a) simply states: “A person who 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 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.”

National Guard technicians are a specific category of full-time, federal civil service employees whose primary mission is to provide day-to-day continuity in the operation and training of Army and Air National Guard units. They must maintain military status in the National Guard in order to retain employment as Guard technicians; if they are unable to continue serving as military members of the National Guard, they also lose their employment as National Guard technicians.

It’s important to note that as a National Guard technician, your employer is the State Adjutant General, not the Secretary of the Army or Air Force. If employers of National Guard technicians violate the provisions of USERRA, that law requires the technicians to sue in state court. I would note that the Supreme Court, in the 1999 case Alden v. Maine (119 S. Ct. 2240), held that state courts do not have to enforce employee damage actions based in federal law against state agencies, because that violates the Eleventh Amendment. That said, my law firm, in the case of Jopson v. Thomas P. Maguire, Jr., successfully brought an action in state court alleging USERRA violations against several National Guard technicians. The case named the Adjutant General of the State of New York — Maguire — as the defendant.

Former New York State Attorney General (now Governor) Eliot Spitzer argued that USERRA does not apply to Guard technicians. But the New York State Supreme Court sided with my firm and held that technicians can sue the Adjutant General for violations of USERRA. This case demonstrates that it is possible, even in light of Alden v. Maine, to bring an action in state court.

Q: Are state call-ups of National Guard members protected under USERRA?

A: No. USERRA does not apply to “state” military duty or governor call-ups of National Guard members. USERRA defines military service as the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes: active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard, for an examination to determine their fitness for service, or for the purpose of performing funeral honors duty as authorized by Section 12503 of Title 10 or Section 115 of Title 32 of the U.S. Code.

However, most states have laws that offer protection for state military service, and in most instances those laws are comparable to protections provided under USERRA. In fact, some state laws go even further than the federal law to protect service men and women while engaged in state military service.

Q: What is the statute of limitations under USERRA?

A: There is no statute of limitations under USERRA. The provisions of the law clearly state: “No state statute of limitations shall apply to any proceeding under this chapter.” (Title 38, Section 4323(i) of the U.S. Code.) Furthermore, the Merit Systems Protection Board, the federal agency charged with hearing and determining administrative claims brought by federal employees under USERRA, also determined that there is no statute of limitations.

Discuss: USERRA and the Guard

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 (www.fedattorney.com), a law firm in Albany, N.Y. Send your legal questions to askthelawyer@militarytiumes.com.

"Ask a Lawyer" gives you the opportunity to ask military law experts questions about legal issues or topics. This is a general information service. The lawyers who are responding to your questions do not know all the details of your particular situation and, therefore, you should view their responses as information of a general nature and not as legal advice. This service is not a replacement for individual, particularized legal advice from a lawyer and we encourage you to consult with a lawyer before taking any action based on the answers you receive through this feature.