Ask the Lawyer: Re-employment rights apply to federal contractors - Military Law, Military Law Advice, Ask a Lawyer - Army Times

Ask the Lawyer: Re-employment rights apply to federal contractors

Lawyer Mathew B. Tully answers your questions.

Q. I was a contractor employed with one company but actually doing work for a federal agency. Does USERRA apply to both employers?

A. Even if you are a contractor, you have clear re-employment rights that should be respected. Asserting those rights under the Uniformed Services Employment and Reemployment Rights Act can be difficult, but not impossible.

The main barrier to re-employment as a federal contractor is that you often have two employers: the company that hired you and the federal agency for which you work. Recent case law makes it clear that you need to give proper notice to the contracting company that initially hired you, and they will be held accountable for protecting your rights under USERRA.

USERRA has three major rules you must follow to be entitled to re-employment rights:

• You must give proper notice that you are being activated.

• Your cumulative absence with the employer must not exceed five years.

• You must notify your employer that you wish to be re-employed.

There are only a few situations when a company is excused from re-employing you, including:

• Circumstances change dramatically, making re-employment impossible, such as major layoffs in this economy.

• An employer can prove that rehiring you would cause undue hardship for the company.

• The company employed you for a brief, nonrecurrent period and there was no expectation that your position would continue for a significant period.

Assuming you met the three major USERRA rules and your company does not meet any of the above exceptions, you are entitled to re-employment.

As a federal contractor, however, it’s possible that the agency you worked with may try to block your re-employment. This is what happened to Army Reserve Brig. Gen. Michael Silva.

Silva gave proper notice that he was being called to active duty in May 2006, and in August 2007, he submitted his application for re-employment. His contractor agreed to re-employ him in the same position he left — but the federal agency that he worked with, the Department of Homeland Security, did not approve his re-employment.

Silva filed a complaint, but an administrative judge held that because Silva was a contractor, he did not fit the exact definition of a civil service “employee” and could not file a claim against DHS.

On appeal, the Merit Systems Protection Board overturned this decision. The board stated that DHS exerted direct control over Silva’s employer, the contracting firm, by preventing Silva’s re-employment, and therefore fit the role of an “employer.” The case not only reasserted reservists’ USERRA rights, but also ensured that employers, even indirect ones, can be held accountable for violating the law. Ë

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.