USERRA 5 year limit

[nittany03]

So by “drill weekends”, are you referring to IDT drills specifically? In other words, Mob(ilization)s, IDTs and AT don’t count, but everything else does (i.e. AFTP/RMP/etc and ADT orders)?

To expound on our new resident JAG, I pulled an old set of AT orders where paragraph 2 said "This period of uniformed service is ordered pursuant to 10 USC 10147. Therefore, the service is EXEMPT under USERRA's five-year service limitation (38 USC 4312(c))." Googling 10 USC 10147, that exempts AT from the 5-year limit because you have to do it. This phrase was not on an old set of ADT orders.

So it seems, to translate the good CAPT's interpretation into reserve order-ese after perusing 10 USC 10147 and 38 USC 4312(c), drill periods don't seem to count. AT explicitly doesn't count. ADT, ADOS, and MOBs do count unless the orders/DD-214 have the magic SECNAV waiver.

Standing by for correction if wrong . . .

 

[samwrightancientlawyer]

Colleagues:

Here (below) is the text of section 10147 of title 10 of the United States Code. It includes "active duty for training" as well as "scheduled drills and training periods." Thus, active duty for training (ADT) does not count toward exhausting your 5-year limit with a specific employer.

You cannot always depend on the wording of the orders--the orders-writers still have not come to understand USERRA, although it was enacted 28.5 years ago.

Involuntary mobilizations are excluded from the 5-year limit under section 4312(c)(4)(A) of USERRA. That subsection does not require a determination from the Service Secretary for it to apply--some of the other subsections do require a Service Secretary determination.

Most of USERRA is not that complicated, but the 5-year limit is complicated. But if you limit yourself to doing your required Reserve Component training and to responding to mobilization orders, as required, you do not need to worry about the 5-year limit, because everything that you do is exempted from the limit. If you are a serial volunteer, you need to keep track of your own 5-year limit to protect your right to return to your civilian job.

Please read my Law Review 16043 (May 2016) for a detailed discussion of what counts and what does not count in computing the 5-year limit. Please read Law Review 15116 (December 2015) for a primer on USERRA. Go to www.roa.org/lawcenter to find a numerical (chronological) index and a subject index.

"(a) Except as specifically provided in regulations to be prescribed by the Secretary of Defense, or by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, each person who is enlisted, inducted, or appointed in an armed force, and who becomes a member of the Ready Reserve under any provision of law except section 513 or 10145(b) of this title [10 USCS § 513 or 10145(b)], shall be required, while in the Ready Reserve, to—
(1) participate in at least 48 scheduled drills or training periods during each year and serve on active duty for training of not less than 14 days (exclusive of traveltime) during each year; or
(2) serve on active duty for training not more than 30 days during each year.
(b) A member who has served on active duty for one year or longer may not be required to perform a period of active duty for training if the first day of that period falls during the last 120 days of the member’s required membership in the Ready Reserve."

Samuel F. Wright

10 USCS § 10147

 

[snake020]

Every set of orders I've had contains a USERRA statement. AT and MOB have been exempt from the five year limit:




All my ADT and ADSW have been non-exempt, but of course YMMV depending on the section of 10 USC authorizing the orders:



When I was with one employer, they would give different treatment (e.g. differential pay, leave accrual while on military orders) to orders that were USERRA exempt vs non-exempt. The next fiscal year after I joined, I noticed they quietly changed the policy to give the benefits regardless of the orders caveats; I suspect they got into trouble.

Edit: Yes, differential pay is not required, but an employer treating different types of duty seemingly arbitrarily different is a bit suspect.

 

[Mos]

It includes "active duty for training" as well as "scheduled drills and training periods." Thus, active duty for training (ADT) does not count toward exhausting your 5-year limit with a specific employer.

I thought the active duty for training in 10147.a.1 referred to AT and that this is different from ADT. I did ADT in excess of 30 days and saw the same non-exempt statement as Snake's above on the orders.

 

[samwrightancientlawyer]

The employer is not required to pay differential pay. That is something that some employers do by choice. An employer can always do more than the law requires. 38 U.S.C. 4302(a).

Under section 4312(c)(4)(A), duty performed under section 688, 12301(a), 12301(g), 12302, 12304, 12304a, 12304b, or 12305 of title 10 is per se exempt from the 5-year limit. No Service Secretary determination is required. Orders sometimes include a statement to the effect that the service is exempt from the 5-year limit, and that is a nice touch, to reassure the reservist and his or her employer, but that statement is not necessary to make the service exempt.

Service under section 12301(d) is voluntary and is not per se exempt. Section 12301(d) service can be exempt from the 5-year limit if the Service Secretary has determined that the service is "because of a war or national emergency declared by the President or the Congress." 38 U.S.C. 4312(c)(4)(B). In that case, a determination by the Service Secretary is necessary to make the 12301(d) voluntary service exempt.

Please read my Law Review 16043 (May 2016). That article goes into great detail as to what counts and what does not count, and it includes all the statutory citations. Go to www.roa.org/law center. Go to "numerical index" then "2016 articles."
Samuel F. Wright

 

[samwrightancientlawyer]

I thought the active duty for training in 10147.a.1 referred to AT and that this is different from ADT. I did ADT in excess of 30 days and saw the same non-exempt statement as Snake's above on the orders.

For USERRA purposes, there is no difference between AT and ADT--both are protected and both are exempt from the 5-year limit computation.

A statement in the orders is not necessary to make a period of AT or ADT exempt from the 5-year limit. But such a statement could be useful in reassuring the service member and his or her employer.

Do not put too much faith in the statements in orders. The personnel officers who put those statements in there are not lawyers, and sometimes they are misunderstanding USERRA.

If you want individual advice about USERRA, send me an email at samwright50@yahoo.com. I will not charge you for the consultation, but I will ask you to join ROA, if you are not already a member. I will not make ROA membership a condition precedent to my answering your questions, but if you join that will make me more cheerful about speaking with you and spending some time.

Have a great Navy day.

R,

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

 

[Mos]

Thanks, I will reach out if this becomes a problem (I doubt it will), but I find it interesting that the orders writing seems to be at odds with the law.

 

[nittany03]

Thanks, I will reach out if this becomes a problem (I doubt it will), but I find it interesting that the orders writing seems to be at odds with the law.

Reminds me of the base JAG who did his level best to shut down summary courts-martial the minute he got a whiff of them, and turn them into NJP or special courts-martial as appropriate. Because a summary court-martial, if the accused has a lawyer, is a full-bull judicial proceeding appealable all the way up to SCOTUS, but run by non-lawyer officers. And he said he'd never seen one that didn't have some fatal defect somewhere in the process that a good lawyer couldn't use to get it tossed on appeal.

 

[MIDNJAC]

This is kind of amusing (and interesting) because I struggle to determine the type of SELRES service that wouldn’t be exempt. 48 IDT and up to 29 AT makes sense, because that is the basic requirement for all flavors of reservists/guard members. But for those of us that do a lot of ADT and/or AFTP drills, this is basically saying i could go on mil leave from my employer for an indefinite amount of time (provided the money for the orders/drills existed) and never tap into the USERRA protection. And maybe that was the spirit and intent of USERRA in the first place? I imagine Mr Wright can comment on that. Doesn’t really make a practical difference to me personally, since I have more USERRA protected days than days to mil retirement, but maybe it could if i stuck around > 20, which is why i ask.

Also, i know with. 100% certainty that my employer is not differentiating/exempting any days. I would guess even our ALPA mil affairs reps aren’t aware of this stuff......though that is just an assumption.

 

[wink]

Also, i know with. 100% certainty that my employer is not differentiating/exempting any days. I would guess even our ALPA mil affairs reps aren’t aware of this stuff......though that is just an assumption.

Mill affairs guys my ass. I know one of the labor lawyers at alpa. Think I will shoot him a couple vectors.

 

[samwrightancientlawyer]

This is kind of amusing (and interesting) because I struggle to determine the type of SELRES service that wouldn’t be exempt. 48 IDT and up to 29 AT makes sense, because that is the basic requirement for all flavors of reservists/guard members. But for those of us that do a lot of ADT and/or AFTP drills, this is basically saying i could go on mil leave from my employer for an indefinite amount of time (provided the money for the orders/drills existed) and never tap into the USERRA protection. And maybe that was the spirit and intent of USERRA in the first place? I imagine Mr Wright can comment on that. Doesn’t really make a practical difference to me personally, since I have more USERRA protected days than days to mil retirement, but maybe it could if i stuck around > 20, which is why i ask.

Also, i know with. 100% certainty that my employer is not differentiating/exempting any days. I would guess even our ALPA mil affairs reps aren’t aware of this stuff......though that is just an assumption.

USERRA's legislative history provides: "In order, however, to ensure that the Armed Forces have an adequate supply of trained personnel, certain exceptions to the five years basic limitation would be established by the Committee bill." This quote is from the report of the House Committee on Veterans' Affairs. The committee report goes into great detail on each of the 9 exemptions from the 5-year limit.

It is not up to the employer to differentiate between exempt and nonexempt periods of service. You should keep track of your own 5-year limit to protect your right to return to work at that employer after you complete your period of service. If your cumulative period of service with that employer exceeds 5 years, you will need to document that one or more of the exemptions apply so that your cumulative period of nonexempt service has not exceed 5 years. Please see my Law Review 16043 (May 2016). The title of the article is "You Must Keep Track of Your Own Five-Year Limit."

Go to www.roa.org/lawcenter. You will find more than 1500 articles about USERRA and another 600 articles about other military-legal topics. You will find a detailed subject index. The articles are available for free to everyone, not just ROA members. These articles are my legacy, and I want service members and attorneys to use them. In the last two years, I have recruited three understudies--judge advocates who are young enough to be my granddaughters to carry on this legacy after I am gone.

Samuel F. Wright

 

[samwrightancientlawyer]

Mill affairs guys my ass. I know one of the labor lawyers at alpa. Think I will shoot him a couple vectors.

I recall traveling from my office on Capitol Hill to the ALPA headquarters, somewhere near Dulles Airport, and speaking to ALPA lawyers for 3 or 4 hours about USERRA. That was circa 2014. I would love to renew my acquaintance with ALPA lawyers. Samuel F. Wright

 

[wink]

I recall traveling from my office on Capitol Hill to the ALPA headquarters, somewhere near Dulles Airport, and speaking to ALPA lawyers for 3 or 4 hours about USERRA. That was circa 2014. I would love to renew my acquaintance with ALPA lawyers. Samuel F. Wright

The guy I know only joined ALPA Legal about 4 years ago. Was once an associate of my wife's. Good man. I'll see if I can get you together directly.

 

[samwrightancientlawyer]

Thank you. I have also worked with the legal department of SWAPA (Southwest Airlines Pilots Association).

 

[MIDNJAC]

Well I’d just say thanks for your hard work on this legislation. It is really important to the wellness and readiness of the reserves for sure.