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 1271

July 2012

Don’t Conflate Section 4311 of USERRA with Section 4312


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

1.2—USERRA Forbids Discrimination
1.3.1.1—Left Job for Service and Gave Prior Notice
1.4—USERRA Enforcement

Fox News and other media outlets have published articles about the case of Derek Laaser, 19, who was employed by Chevrolet of Milford (Connecticut) from October 2011 until May 2012, when he left his job to report to Marine Corps basic training at Parris Island, South Carolina.  The Fox News article quoted both Laaser’s attorney and a supposed expert on the Uniformed Services Employment and Reemployment Rights Act (USERRA), and both attorneys seemed confused about USERRA and seemed to be conflating two separate USERRA sections.  I am referring to section 4311, which forbids discrimination, and section 4312, which accords the right to reemployment after release from a period of service.

Congress enacted USERRA in 1994, as a long-overdue rewrite of the Veterans’ Reemployment Rights Act (VRRA), which was originally enacted in 1940, as part of the Selective Training and Service Act (STSA), the law that led to the drafting of millions of young men (including my late father) for World War II.  I had a hand in the drafting of USERRA while I was employed as an attorney for the Department of Labor (DOL).  USERRA is codified in title 38, United States Code, sections 4301 to 4335 (38 U.S.C. 4301-4335).

As I explained in Law Review 0766 and other articles, an individual must meet five eligibility criteria to have the right to reemployment under USERRA:

  1. Must have left a position of employment for the purpose of performing service in the uniformed services.
  2. Must have given the employer prior oral or written notice.
  3. Cumulative period or periods of uniformed service, relating to the employer relationship for which the individual seeks reemployment, must not have exceeded five years.  All involuntary service and some voluntary service (including initial active duty training in the Marine Corps Reserve, as in Laaser’s case) are exempted from the computation of the limit.  See Law Review 201.
  4. Must have been released from the period of service without having received a punitive or other-than-honorable discharge.
  5. Must have made a timely application for reemployment after release from the period of service.

I invite the reader’s attention to www.servicemembers-lawcenter.org.  You will find 771 articles about USERRA and other laws that are particularly pertinent to those who serve our country in uniform, along with a detailed Subject Index and a search function, to facilitate finding articles about very specific topics.

If Laaser meets these five conditions, later this year when he completes his initial Marine Corps Reserve training, he will have the right to reemployment at Chevrolet of Milford.  If he fails to meet one or more of the conditions, he will not have the right to reemployment.  At this point, he does not have an actionable USERRA case, because he does not yet meet the criteria. 

It is very like but not certain that he will meet them.  He could switch from the Marine Corps Reserve to the Regular Marine Corps and stay on active duty past the five-year limit.  He could do something really stupid and get a bad conduct discharge or other bad discharge that disqualifies him from reemployment under section 4304 of USERRA, 38 U.S.C. 4304.  He could get a great job offer elsewhere and choose not to apply for reemployment at Chevrolet of Milford.  He could win the Publishers Clearinghouse Sweepstakes and retire.  Until he meets all five of the eligibility criteria, he does not have a ripe claim for reemployment, and he cannot meet the final two criteria until he has completed the current period of service.

The Fox News article contains some confusing discussion on the issue of the advance notice that Laaser gave his employer before he departed to report to Parris Island.  First, let me emphasize that Laaser was not required to give the employer notice before he enlisted in the Marine Corps Reserve.  If he had consulted me, I would have advised him not to notify the employer that he was considering enlisting—this would serve no useful purpose and would give the employer the opportunity to try to bully him out of his decision to enlist. 

The civilian employer does not get a veto and is not entitled to be consulted concerning an employee’s decision to apply for enlistment in the armed forces, as a regular or as a Reserve Component member.  I invite the reader’s attention to Law Review 122 of April 2004 (“May We Forbid Current Employees Permission to Join Reserves?”) and Law Review 135 of September 2004 (“Employer Quotas Revisited”). 

When Laaser first needed to miss work for service, he was required to give Chevrolet of Milford advance notice of his expected absence from work for the purpose of service.  As an eligibility requirement for reemployment following service, here is the specific statutory language:  “the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person’s employer.”  38 U.S.C. 4312(a)(1) (emphasis supplied).  If Laaser gave advance notice to the employer, or if the recruiter or someone else in the Marine Corps gave the notice for him, Laaser will have the right to reemployment, provided of course that he meets the other four eligibility criteria.

Merriam-Webster’s Dictionary and Thesaurus (2006) defines “advance” as “made, sent, or furnished ahead of time.”  If Laaser informed Chevrolet of Milford even one day before his departure to travel to Parris Island, that was advance notice.  If Congress had intended to require a week or a month of advance notice, Congress would have written such a requirement into the law.

USERRA’s 1994 legislative history contains an instructive paragraph about the advance notice requirement:  “The Committee [House Committee on Veterans’ Affairs] believes that the employee should make every effort, when possible, to give timely notice.  The issue of timely notice should be considered on a case-by-case basis.  In the event that an employee is notified by military authorities at the last minute of impending military duty, resulting short notice given to the employer should be considered timely.  On the other hand, last-minute notice, which could have been given earlier by the employee but was unjustifiably not given, and which causes severe disruption to the employer’s operation, should be viewed unfavorably.  Lack of a timely notification which does not result in harm to the employer should not be a sufficient basis to deny reemployment rights.”  House Rep. No. 103-65, 1994 United States Code Congressional & Administrative News 2449, 2459. 

Of course, the question of the sufficiency of Laaser’s advance notice to the employer is not yet ripe, because Laaser has not been released from the period of service and has not yet applied for reemployment.  But when the question is ripe, it appears that the notice that Laaser gave was sufficient.

The Fox News article characterized the employer’s action as firing Laaser, immediately before he departed to report to boot camp.  I think that characterization is not accurate, because Laaser did not actually miss any work or any pay before he reported to duty.  I would characterize the employer’s actions and statements as an expression of intent to flout USERRA when Laaser returns from duty.  While reprehensible, the expression is not immediately actionable and will only be actionable if Laaser ultimately meets the five eligibility criteria for reemployment and if the employer acts on its expressed intent to flout the law.  Let us hope that Chevrolet of Milford will come to its senses long before Laaser returns from boot camp.

The employer’s expression of intent to flout the law may also be relevant, in a few months, with respect to the remedy to which Laaser may be entitled if he sues and prevails.  USERRA’s remedies provision is as follows:  “In any action under this section, the court may award relief as follows:  (A) The court may require the employer to comply with the provisions of this chapter. (B) The court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer’s failure to comply with the provisions of this chapter. (C) The court may require the employer to pay the person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if the court determines that the employer’s failure to comply with the provisions of this chapter was willful.” 38 U.S.C. 4323(d)(1) (emphasis supplied).

Let us assume that Laaser successfully completes boot camp on December 1, returns to Milford on December 2, and applies for reemployment at the dealership on December 3.  At that point, Laaser clearly meets the five eligibility criteria for reemployment, but the employer refuses to reemploy him.  While diligently seeking mitigating employment elsewhere, Laaser sues Chevrolet of Milford in the United States District Court for the District of Connecticut.  The employer foolishly refuses to settle, and it takes two years for the discovery process and to set the case for trial.  A trial is held in December 2014, and Laaser prevails.

Let us assume that Laaser proves that if he had been promptly and properly reemployed in December 2012 he would have earned $140,000 in salary and benefits from Chevrolet of Milford during the two-year period from his application for reemployment until the trial.  Let us further assume that Laaser earns $60,000 from other jobs that he is able to find during the two year period.  (Laaser is required to make a reasonable effort to mitigate his damages.)  In this scenario, Laaser is entitled to $80,000 in back pay, in accordance with 38 U.S.C. 4323(d)(1)(B).[1]  If he proves that Chevrolet of Milford violated the law willfully, he is entitled to an additional $80,000 in liquidated damages, in accordance with 38 U.S.C. 4323(d)(1)(C).  Please see Law Review 206 for a detailed discussion of the computation of damages under USERRA.

If Laaser proceeds with private counsel and prevails, he is also entitled to a court order requiring the employer to pay his attorney fees.  See 38 U.S.C. 4323(h)(2).  In a case like this, the attorney fees might be greatly in excess of the back pay and liquidated damages.  This should give Chevrolet of Milford a powerful incentive to comply with the law and to apologize to Laaser for its failure to support his decision to enlist in the Marine Corps Reserve.

I am here during regular business hours every business day, and until 10 p.m. Eastern Time on Thursdays, advising Reserve Component members and their employers, and attorneys on both sides, about their rights and obligations under USERRA and other laws.  Call me at 800-809-9448, extension 730, or e-mail me at SWright@roa.org. 


[1] Actually, the figure on back pay may be something more than $80,000, because the back pay comparison must be made on a pay-period-by-pay-period basis, for comparable work hours.  Please see Law Review 206.