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For the past year I’ve found myself refocusing my practice so as to spend the majority of my time working on USERRA cases. USERRA is the Uniformed Services Employment and Reemployment Rights Act—it is the statute that mandates how employers in America must treat their employees who participate in the Reserves or National Guard or are recalled to active duty in the uniformed services.
I’ve always instinctively routed for the underdog, and there is little doubt that veterans who try to enforce their USERRA rights are the underdogs when they attempt to take on the large corporations with their corporate attorneys who are often their employers.
USERRA does provide for the possible intervention of government entities such as VETS (a unit of the Department of Labor) or the US Attorney General to assist in USERRA enforcement actions, but in reality I’ve found these agencies to be of little practical help when pitted against corporate attorneys. In fact, USERRA deliberately provides for and relies upon civil litigators to enforce the statute, and I’m proud to add my name to the list of prior-military attorneys who are willing to toss their hat in the ring to help our vets.
What I have encountered so far in my USERRA practice
has not been the mom and pop store that innocently violates some
principle of the statute. Rather, I have predominantly dealt with the
problem of “free riders.” I am currently the lead attorney in a lawsuit
filed on behalf of a prior-military pilot employed at a major airline.
The total amount in controversy in this case is approaching two million
dollars. In this suit I have described the problem of free riders as
In the case of airpower, well over half of the America’s military airlift and tanker support is flown by components of the Air Force Reserve and Air National Guard. Nearly half of the US strategic and tactical combat air wings reside in the US Reserves and Air National Guard. US military air power could literally not accomplish half of what they accomplish every day, without the active participation of the Guard and Reserve forces.
Recognizing this critical contribution to national security, Congress enacted the USERRA statute to ensure our military professionals would be able to continue to contribute their critical skills to our national security without jeopardizing their civilian careers.
When Congress passed USERRA, they understood that its provisions to reemploy service members in the same positions they would have been in if they hadn’t been away on military orders, to contribute to their retirement funds as if they hadn’t been away, to basically treat them as if they were on an escalator that permitted them to step back on at the same level they were before they left—worked a hardship on employers. But they also recognized that this shared hardship paled in comparison to the vital contribution these employees made to our national security while they were away on military leave; and that it was only through the sacrifices and contributions of the Reserve and Guard warriors that these same employers would continue to operate in a free America where they had the opportunity to earn profits.
For decades now, some employers have been free-riders in this shared responsibility. They have sought out and actively hired pilots with military backgrounds, availing their airlines of the millions of taxpayer dollars spent training these pilots to not only possess the necessary technical skills to safely operate a modern jetliner, but also to have the necessary leadership skills and judgment to make sound decisions and lead their company to prosperity in a very competitive and hazardous environment.
But once they successfully recruited these highly
sought after pilots, they have deliberately acted to discourage those
pilots’ continued participation in the Air Guard and Reserves, even
though they knew those pilots were critical actors in their military
units when they hired them.
It is simply, a business decision. They know what is required of them as a responsible corporate player by USERRA, but they have made the corporate decision that it is financially cheaper to violate the statute and pay the penalties, than it is to comply with its ethical standards. This puts their competitors at a tactical disadvantage, because while some of their competitors’ pilots are manning military cockpits and still receiving the benefits and protections of USERRA, the great majority of the free-rider’s pilots are manning their corporate cockpits, without requiring them to make deemed income contributions to their retirement accounts or reemploy them when they get hurt on military duty…leaving Uncle Sam to pick up the entire tab for these wounded warriors.
At the end of the day, the only way to ensure the
free-riders shoulder their share of the joint security burden, is to
make it more expensive to violate the USERRA statute, than to comply
with its requirements, and reap its shared benefits.
“The right solution, for the right reason, at the right price.”
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Col. Sherman F. Morgan, Ret. - South Carolina Aviation Law | Phone: (803)981-4180 | ©2018 All Rights Reserved.