Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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LAW REVIEW 1037

USERRA and Veterans’ Preference Laws Apply to California Court System

By Captain Samuel F. Wright, JAGC, USN (Ret.)

1.1.1.7—State and Local Governments

1.4—USERRA Enforcement

1.7—USERRA Regulations

8.0—Veterans’ Preference

Q: I am a volunteer attorney for an organization that assists veterans returning home after service in Iraq and Afghanistan. I have read your Law Review articles about the Uniformed Services Employment and Reemployment Rights Act (USERRA), and I have found them to be most useful in my work. Until recently, the state courts that sit in our county were served by the county’s personnel office, but the state courts recently split off from the county’s personnel office and established their own personnel office. The state court system now insists that it is exempt from USERRA and from veterans’ preference laws. Is that assertion correct?

A: No. Let us deal with USERRA first. Congress enacted USERRA in 1994, as a comprehensive rewrite of the Veterans’ Reemployment Rights Act (VRRA), which can be traced back to 1940. The federal reemployment statute has applied to the Federal Government and to private employers since 1940. In 1974, Congress amended the VRRA to make it apply to state and local governments as well. USERRA applies to essentially all employers in the United States, including the Federal Government, the states and their political subdivisions, and private employers, regardless of size.

When it enacted USERRA in 1994, Congress exempted the legislative branch and the judicial branch of the federal government from USERRA enforcement through the Merit Systems Protection Board (MSPB), because of separation of powers concerns within the Federal Government. In 1995, Congress enacted the Congressional Accountability Act (CAA), which makes 11 federal statutes (including USERRA) explicitly applicable to the Legislative Branch of the Federal Government. The CAA provides an enforcement mechanism through the Congressional Accountability Office. Please see Law Review 34, available at www.roa.org/law_review.

Let us assume that Joe Smith worked for the Supreme Court Law Library when he joined the Army in 2005. He was released from active duty in early 2010. He meets the USERRA eligibility criteria for reemployment (prior notice to the civilian employer, the five-year limit, release from active duty under honorable conditions, and timely application for reemployment). For whatever reason, the Supreme Court does not wish to reemploy Joe. Under these circumstances, the Office of Personnel Management (OPM) is responsible for finding Joe an equivalent position in the executive branch and for ensuring that Joe is offered that position by that federal agency. In this way, Joe gets his reemployment rights, but we avoid the constitutional tension of bringing an enforcement action against the Supreme Court.

The separation of powers concerns that apply with respect to the judicial branch of the federal government do not apply to the judicial branch of a state government. State judicial branches are subject to USERRA and to the USERRA enforcement mechanism just like other branches of state governments.

Section 4331 of USERRA (38 U.S.C. 4331) gives the Secretary of Labor the authority to promulgate regulations about the application of USERRA to state and local governments and private employers. The Secretary published proposed USERRA regulations in 2004 and final USERRA regulations in the Federal Register on Dec. 19, 2005. The regulations are published in Title 20, Code of Federal Regulations, Part 1002.

Together with the final regulations, the Department of Labor (DOL) published a scholarly preamble, responding to the comments that were submitted after the proposed regulations were published. One paragraph of the preamble makes clear that USERRA applies to state governments as employers, including legislative and judicial branches of state governments: “Proposed section 1002.39 covers states and other political subdivisions of the United States as employers, and the Department received one comment regarding this provision. The commenter noted USERRA’s specific treatment for reemployment of employees of the federal legislative and judicial branches and, seeing no similar provision for employees of state legislative and judicial branches, asked whether USERRA’s protections applied to the latter group. In response, the Department again notes USERRA’s broad applicability to all employers, explicitly including the states, 38 U.S.C. 4303(4), without regard to whether the state employer is in the state’s judicial or legislative branch. 2005 Federal Register, page 75253, left column.

I also invite the reader’s attention to Law Review 0912 (Feb. 2009) and Law Review 0912 Update. The Department of Justice sued the North Carolina Administrative Office of Courts and North Carolina Superior Court Judge Jerry Braswell. Judge Braswell appointed Army Reservist James Myles a magistrate but refused to reappoint Myles at the end of his initial term of appointment. In making the decision not to reappoint Myles, Judge Braswell unlawfully considered Myles’ Army Reserve service and the occasional inconveniences to the civilian employer caused by that service. The case was resolved, favorably to Myles.

The question of whether the veterans’ preference law applies to the California court system, as an employer, is a state law question, not a federal law question. The federal statute on veterans’ preference applies to federal agencies as employers, not to state and local governments. California and more than 40 other states have their own laws on veterans’ preference, governing employment by the states and their political subdivisions. The California veterans’ preference law can be found at sections 18971 through 18979 of the Government Code. I see nothing in this law that would exempt California’s judicial branch from the law’s application.

If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Service Members Law Center) at swright@roa.org or 800-809-9448, ext. 730.