Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employees who are called to duty in the federal uniformed services are protected from various forms of discriminatory treatment. USERRA's protections expressly extend to the National Guard. However, what protections does an employee have under USERRA if activated by the state and not federal government to assist with state-based law enforcement? The answer recently caused a difference of opinion among federal judges.
A police officer for the city of Joliet, Ill., enlisted with the National Guard in August 2015 and performed active-duty services on multiple occasions thereafter. In March 2016, the police officer was called to full-time National Guard duty in the Illinois National Guard Counterdrug Task Force. The officer was assigned to counterdrug support in Illinois, as provided for under federal law, and started service in May 2016.
A month after the officer started duty with the task force, his supervisor in Joliet sent him an e-mail stating that he was being placed on an unpaid leave of absence, would have to use accrued benefit time while away and would not continue to accrue time-off benefits. While USERRA does not require military leave to be paid, it does prohibit employers from mandating the use of accrued benefit time and from disallowing employees to accrue time off during military leave if permitted to do so for other types of leave.
After returning from service in the task force, the officer sued the city of Joliet, alleging that he was denied his USERRA rights. The city moved to dismiss the federal claim by arguing that the court did not have jurisdiction since the officer's service on the task force "was clearly under the authority of the state of Illinois."
[SHRM members-only how-to guide: How to Administer Military Leave Benefits Under USERRA]
The district court judge agreed, relying in part on a Department of Labor regulation providing that "National Guard service under the authority of state law is not protected by USERRA."
On appeal, the 7th Circuit reversed. Noting that USERRA specifically includes full-time National Guard duty as a class protected from discrimination, it found that the statute was clear and interpretation of the regulation was unnecessary. Notwithstanding, it highlighted that the relied-upon regulation plainly says that full-time National Guard service under federal authority is protected by USERRA. Only when such service is "state-active duty" under exclusive state authority is USERRA inapplicable, the appeals court concluded.
Mueller v. City of Joliet, 7th Cir., No. 18-3609 (Dec. 4, 2019).
Professional Pointer: The nuance of being called to duty under federal authority versus exclusive state authority can be the difference between a lawful and potentially unlawful employment decision.
Scott M. Wich is a lawyer with Clifton Budd & DeMaria in New York City.
An organization run by AI is not a futuristic concept. Such technology is already a part of many workplaces and will continue to shape the labor market and HR. Here's how employers and employees can successfully manage generative AI and other AI-powered systems.
Related Content
HR must always include human intelligence and oversight of AI in decision-making in hiring and firing, a legal expert said at SHRM24. She added that HR can ensure compliance by meeting the strictest AI standards, which will be in Colorado’s upcoming AI law.
The proliferation of artificial intelligence in the workplace, and the ensuing expected increase in productivity and efficiency, could help usher in the four-day workweek, some experts predict.
Learn how Marsh McLennan successfully boosts staff well-being with digital tools, improving productivity and work satisfaction for more than 20,000 employees.