Monthly Law Journal Article: Military Leave--Part One, 2011 (5) AELE Mo. L. J. 201.
     Monthly Law Journal Article: Military Leave--Part Two, 2011 (6) AELE Mo. L. J. 201.

     A Drug Enforcement Agency (DEA) criminal investigator was also an officer in the Army Reserves. The DEA assigned him to its Lima, Peru office, where he served four years. He was unsuccessful in seeking a two-year extension of the assignment, and argued that the decision not to renew his tour was unlawfully based on his military service in violation of the Uniformed Services Employment and Reemployment Rights Act, (USERRA), 38 U.S.C. 430. An ALJ addressing this claim found it "unsupported," citing various "performance issues" in terms of his numbers of arrests, seizures, informant recruitments, and disruptions of criminal organizations, as well as alleged failure to follow his chain of command and "disrespectful and improper" emails to his supervisor. While the Merit Systems Protection Board denied his appeal, a federal appeals court ordered further proceedings, since the DEA failed to meet its burden of showing that it would have reached the same decision in the absence of the plaintiff's military service. McMillan v. Dep't of Justice, #15-3042, 2016 U.S. App. Lexis 2605 (Fed. Cir.).
     An Indiana city, under a long time local ordinance, paid police officers "longevity pay" after each year of employment, amounting to $225 multiplied by the number of years of service. Because of financial problems in 1989, the city passed a second longevity pay law that prorated longevity pay for any officer taking a leave ofg absence during a particular year, including leaves for military service. An officer missed almost eight months of work during his twelfth year of service, while serving in the Air Force Reserves. He was therefore only paid one third of his longevity pay for that year. He claimed that his longevity pay was a seniority-based benefit which he could not be deprived on based on military service under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301–4335. A federal appeals court overturned summary judgment in favor of the city, finding that the statute guaranteed the officer payment of his full longevity pay for his twelfth year of service. The longevity pay was better characterized as a reward for the officer's lengthy service, rather than pay for work performed in a specific year. DeLee v. City of Plymouth, #14-1970, 2014 U.S. App. Lexis 23148.
     A former postal employee claimed that he faced discrimination and was ultimately terminated in violation of his rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for taking military leave, which the employer regarded as excessive. He prevailed in two appeals on his discrimination claims to the Merit Systems Protection Board, and was awarded reinstatement with backpay and benefits. He was not entitled to attorneys' fees, however, as USERRA's attorneys' fee provision, 38 U.S.C. Sec. 4324(c)(4), did not authorize the Board to award attorneys' fees incurred during judicial review and there was no independent statutory provision for an award of attorneys' fees by a reviewing court. Erickson v. U.S. Postal Serv., #08-3216, 759 F.3d 1341 (Fed. Cir. 2014).
     While serving as an Army officer in Kuwait, a man was apprehended manufacturing homemade wine and sharing it with an enlisted man. When he returned to employment with a city-county police force, he did not disclose that his separation from the service, though classified as "honorable," was in lieu of him undergoing a court martial trial. When the employer found out, it delayed his rehiring, and failed to restore his rank of sergeant. The employer was required by the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C.S. §§ 4301-4335, to restore him to his former position without any "additional prerequisites" or rescreening. The employer may have been able, after reemploying him in his former position and rank, to fire him for dishonesty, but since it never did restore him to his job, the trial court properly exercised its discretion in awarding him back pay and ordering him reinstated. The court also found that denying him permission to moonlight as a security guard was unlawful discrimination under USERRA. Petty v. Metropolitan Government of Nashville and Davidson County, #10-6013, 2012 U.S. App. Lexis 15181, 2012 FED App. 0226P (6th Cir.).
     An employee of the Air Force argued that the employer violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994, by charging nonwork days against his military leave, causing him to exhaust his military leave and have to use his annual leave to fulfill his reserve obligation. The court upheld a decision of the Merit Systems Protection Board denying him compensation for six nonwork days. He failed to present evidence in the form of records identifying the days on which the Air Force charged him military or annual leave, instead relying only on his own testimony and documents created by his lawyer, which were not independent evidence supporting his testimony, but merely a summary of it. Duncan v. Dep't of the Air Force, #2011-3053, 674 F.3d 1359 (Fed. Cir. 2012).
     The federal government sued an agency of the state of Alabama under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C.S. 4301 et seq., challenging its alleged lengthy delay in reinstating an employee after he finished his military service in Iraq. A lawsuit against the state by the employee himself would be barred under the Eleventh Amendment, but a federal appeals court ruled that the U.S. government was not similarly barred from suing, and could do so to promote its goal of encouraging military service. Despite the fact that the facility where the employee had previously worked before he went on active military service had subsequently closed, he was entitled to an award of lost wages and benefits. He never expressed any intent to resign, and informed the employer when he declined a transfer that he would be deploying shortly to active duty overseas. U.S. v. Alabama Dept. of Mental Health and Mental Retardation, #10-15976, 2012 U.S. App. Lexis 5550 (11th Cir.).
     Supreme Court holds that "if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable" under the USERRA. A jury had awarded the employee $57,640 in damages after it determined that the plaintiff was fired because of his military service. Staub v. Proctor Hospital, #09-400, 131 S.Ct. 1186, 2011 U.S. Lexis 1900, 111 FEP Cases (BNA) 993.
     Military service laws do not protect reservists against harassment. Pilots alleged that airline management created a hostile work environment through "harassing, discriminatory, and degrading comments and conduct relating to and arising out of" their military service. "We decline to infer a cause of action for hostile work environment under USERRA." Carder v. Continental Airlines, #10-20105, 2011 U.S. App. Lexis 5847 (5th Cir.).
     Federal appeals panel overturns a holding that a postal employee abandoned his civilian career in favor of a military career and waived the USSERA's antidiscrimination protection. His period of military service did not exceed five years and the evidence did not support an inference that he manifested a clear intention to abandon his civilian career. Erickson v. U. S. Postal Service, #2010-3096, 2011 U.S. App. Lexis 3815, 190 LRRM (BNA) 2321 (Fed. Cir.).
     Summary judgment is unwarranted where there is a factual dispute over whether a police officer was required to take a vacation day while on military duty. Conners v. Billerica Police, #08-11565, 2010 U.S. Dist. Lexis 3515 (D. Mass.).
     A federal agency cannot refuse to reemploy a returning veteran on the technical ground he was paid by a government contractor. “If, as the appellant alleges, DHS exercised direct control over [the private contractor] to such an extent that DHS effectively prevented his reemployment, then DHS should be considered to be the appellant’s employer under USERRA.” Silva v. Dept. of Homeland Security, #DC-4324-08-0776-I-1, 2009 MSPB 189.
     Although for nine years a city allowed police officers who missed their weekend work shifts while attending National Guard duties to make up the time on their scheduled days off, management was not obliged to continue that policy, because non-Guard employees who miss work for non-military activities are not provided with a comparable scheduling benefit. Crews v. City of Mt. Vernon, #08-2435, 2009 U.S. App. Lexis 11718 (7th Cir.).
     Pay differential legislation enacted: Section 751 of the Omnibus Appropriations Act of 2009 adds a new section, which provides that eligible civilian employees of the federal government will receive a supplemental payment equal to the amount by which their civilian basic pay exceeds their military pay and allowances allocable to the given period. 5 U.S. Code §5538; Public Law 111-8.
When an employee raises a claim of disability discrimination based on an injury incurred while on military leave, "the fact that the injury was incurred during military service is incidental to the claim of disability discrimination and does not make the appellant’s claim a USERRA claim." Henson v. U.S. Postal Service, Docket # DA-0752-08-0230-I-1, 2009 MSPB 38.
     City settles claims raised by firefighter who was suspended for three days and denied a raise because he timely reported for military duty although the National Guard delayed in providing him with written orders. Slocum v. City of Iola, Civil #08-1409 (D.Kan. 2009).
     Violations of the Uniformed Services Employment and Reemployment Rights Act are subject to arbitration clauses. Landis v. Pinnacle Eye Care, #07-6204, 537 F.3d 559, 2008 U.S. App. Lexis 17055, 2008 FED App. 0285P, 184 LRRM (BNA) 2904 (6th Cir.).
     Congress created a narrow exception in veteran reemployment rights and 38 U.S. Code §4315(a) allows the heads of the FBI, CIA, and NSA to prescribe procedures for reemployment with those agencies. "Congress did not grant similar discretion to local police departments" and Nashville's return-to-work process "was in violation of USERRA's reemployment provisions." Under §4313(a) reemployment "must occur within two weeks of the employee's application for reemployment." Petty v. Metro. Govt. of Nashville-Davidson Co., #07-5649, 2008 U.S. App. Lexis 17549, 2008 FED App. 0302P (6th Cir.)
     Federal court concludes that a military reservist was bound by an agreement to arbitrate all employment-related claims, including discrimination or retaliation arising from his military service. The USERRA does not prohibit arbitration and the Congress has declined to create bars to arbitration in other statutes. Kitts v. Menards, #3:2006cv00708, 2007 U.S. Dist. Lexis 73052, 182 LRRM (BNA) 3109 (N.D. Ind.).
     Federal worker was only entitled to compensation for the days he was on leave without pay. Pucilowski v. Dept. of Justice, #2006-3388, 2007 U.S. App. Lexis 20609 (Fed. Cir.).
     Federal court holds that the Uniformed Services Employment and Reemployment Rights Act's preemption provision does not bar arbitration, and an employee who uses an internal grievance system to complain that a city failed to properly credit his military service toward his retirement benefits is bound by an arbitration award favoring the city. Klein v. City of Lansing, #5:06-CV-142, 2007 U.S. Dist. Lexis 36825 (W.D. Mich.).
     A mandamus action to reclassify a corrections employee that returned from military leave was not an appropriate remedy because he had an adequate remedy through civil service appeal procedures under state law. Turner v. Houk, #2006-2240, 112 Ohio St.3d 561, 2007-Ohio-814, 2007 Ohio Lexis 521.
     The fact that an employer allows workers to earn holiday benefits while on jury duty does not entitle an employee to accrue those benefits while on military leave. Tully v. Dept. of Justice, #2007-3004, 2007 U.S. App. Lexis 6440 (Fed. Cir. 2007).
     Municipal employees can recover liquidated damages under the Veterans' Reemployment Rights Act of 1974, 38 U.S. Code §2021 and 4301-33. Maher v. City of Chicago, #03C3421, 2006 U.S. Dist. Lexis 87508 (N.D. Ill. 2006); prior decis. at 406 F. Supp. 2d 1006. {N/R}
     Ninth Circuit upholds a jury verdict for a former police sergeant who was constructively discharged due, in part, to his military service. Wallace v. City of San Diego, #03-56552, 460 F.3d 1181, 2006 U.S. App. Lexis 21693, 180 LRRM (BNA) 2357 (9th Cir.). {N/R}
     New Jersey appellate court affirms the denial of an accidental disability pension to a municipal police officer that was wounded in course of active military service while on military leave. Mason v. Dept. of the Treasury, A-0356-05T1, 386 N.J. Super. 381, 901 A.2d 441, 2006 N.J. Super. Lexis 189, 180 LRRM (BNA) 2638 (N.J.A.D. 2006). {N/R}
     Fifth Circuit rules that a Marine Corps reservist who claims he was fired after he was sent to Iraq must arbitrate his wrongful termination claim. The Uniformed Services Employment and Reemployment Rights Act does not override the Federal Arbitration Act. Garrett v. Circuit City Stores, #04-11360, 2006 U.S. App. Lexis 11755, 179 LRRM (BNA) 2780 (5th Cir. 2006). {N/R}
     The Labor Dept's Final Rules on the Uniformed Services Employment and Reemployment Rights Act provides that employees who are returning from military service are entitled to continued pension participation, vesting, and accrual of benefits without incurring a break in service. 20 CFR Part 1002, 70 (242) Fed. Reg. 75,279-80. {N/R}
     Claims brought under the Uniformed Services Employment and Reemployment Rights Act are subject to arbitration under the Federal Arbitration Act. Garrett v. Circuit City Stores, #04-11360, 2006 U.S. App. Lexis 11755 (5th Cir. 2006).{N/R}
     Appellate court rejects the claim a "vacancy" is created in the ranks when a senior police officer is called away to temporary active duty in the military. McElroy v. City of Temple, #03-03-00741-CV, 2006 Tex. App. Lexis 2056 (2006). [2006 FP Jun]
     On a petition to award attorney's fees to a reservist that challenged his agency's policies, the Merit Systems Personnel Board holds that USERRA [38 U.S. Code § 324(c)(4)] contains neither a "prevailing party" requirement nor an "interest of justice" requirement. Glassman v. Dept. of Labor, DC-3443-05-0255-A-1, 2006 MSPB 59 (2006) reversing 2006 MSPB Lexis 6966 (ALJ 2005). {N/R}
     Arbitrator rejects a union grievance that management improperly allowed a sergeant, who was on military duty, to take a promotional exam at an off-site location. Federal laws protecting military leave rights supercede the bargaining agreement and administrative rules. Palm Beach County Sheriff's Office and PBC Police PBA, AAA Case No. 32-390-100713-04, 121 LA (BNA) 1624 (Smith, 2005; rptd. 2006). [2006 FP May]
     Dept. of Labor issues final regulations under the Uniformed Services Employment and Reemployment Rights Act of 1994; they became effective on Jan. 18, 2006. 20 CFR Part 1002, 70 (242) Fed. Reg. 75245-75313 (2005-12-16). {N/R}
     In a serviceman's rights case, a state agency is immune under the Eleventh Amendment for liability arising from the Uniform Services Employment and Reemployment Rights Act, but could be sued under 42 U.S. Code §1983 for violating the plaintiff's federal rights. Morris-Hayes v. Bd. of Educ., #04-2450, 423 F.3d 153, 178 LRRM (BNA) 2001, 2005 U.S. App. Lexis 19589 (2nd Cir. 2005). {N/R}
      Although there was a close time proximity between the plaintiff's active duty military service and the decision not to hire him, the employer had hired both military and non-military personnel, and there was no proof that the plaintiff's reserve status affected the decision not to hire the plaintiff. Coffman v. Chugach, #04-14382, 177 LRRM (BNA) 2449, 2005 U.S. App. Lexis 10547 (11th Cir. 2005). {N/R}
     Merit Systems Protection Board reaffirms a holding that TSA screeners are not protected by the USERRA and other military services laws. Spain v. Dept. of Homeland Security, #PH-0353-04-0361-I-1 (MSPB 2005), citing Conyers v. MSPB, #04-3197, 388 F.3d 1380 (Fed. Cir. 2004). Prior decis. at 2004 MSPB Lexis 1482. {N/R}
     Labor Dept issues an interim final rule requiring employers to post military reservist's rights in every workplace; see website at http://www.esgr.com [2005 FP Jun]
     Federal appeals court distinguishes seniority and non-seniority based rights and benefits accrued or lost by military reservists. In the case of non-seniority-based rights and benefits, employers must treat military reservists equally, but not preferentially. Rogers v. City of San Antonio, # 03-50588, 2004 U.S. App. Lexis 24831, 176 LRRM (BNA) 2129 (5th Cir. 2004). [2005 FP Feb]
     At 69 Fed. Reg. 56265 (9/20/04) the Dept. of Labor, Veterans' Employment and Training Service has issued proposed rules to implement the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S. Code §4331(a). No practice of employers or agreements between employers and unions can reduce benefits that the Congress has secured. When adopted, the rules will be codified at 20 C.F.R. Part 1002. {N/R}
     A divided federal appeals court holds that the annual limit on military reserve training does not include days where a federal employee is not scheduled to work. Butterbaugh v. Dept. of Justice, #02-3331, 2003 U.S. App. Lexis 14742 (Fed. Cir. 2003). [2003 FP Oct]
     Arbitrator holds, in the absence of specific language, pay differentials given to sheriff's officers on military leave should include housing allowances in the computation only for those who did not incur additional housing expense when serving on military leave. Franklin Co. Sheriff's Office and FOP L-9, 117 LA (BNA) 1821, FMCS Case #02/05119-6 (Goldberg, 2002). [2003 FP Jun]
     A former police officer was not temperamentally disqualified from reemployment under the Veterans' Reemployment Rights Act. Lapine v. Town of Wellesley, #01-2054, 2002 U.S. App. Lexis 18172 (1st Cir. 2002). {N/R}
     Federal appeals court holds that military training laws did not protect an employee who deliberately falsified his time card. Hill v. Michelin N.A., #00-2202, 252 F.3d 307 (4th Cir. 2001). [N/R]
     In granting 15 "days" of paid military leave a year, the Indiana Legislature intended to treat all public employees equally. Management's policy of paying up to 120 hours of military leave per year, regardless of shift length, treated all public employees the same; management definition of "day" as 8 hours did not conflict with state law or treat unfairly firefighters who work 24 hours on, 48 hours off. Koppin v. Strode, #49A02-0103-CV-148, 761 N.E.2d 455, 2002 Ind. App. Lexis 29 (Ind. App. 2002). [N/R]
     Federal agencies now have discretionary authority to pay both the employee and Government health benefit contributions, for up to 18 months, for employees called to active military duty for more than 30 consecutive days. Agencies may make retroactive payments back to Dec 8, 1995. P.L. 107-107 §519, codified at 5 U.S. Code §8906 (2001). Section 563 also amended 5 U.S. Code §6323(a)(1) to permit federal employees to use their 15 days of military leave for "funeral honors duty" as described in 10 U.S. Code §12503 and 32 U.S. Code §115. [N/R]
     The U.S. Dept. of Labor's Veterans Employment and Training Service has a website explaining the 1994 Uniformed Services Employment and Reemployment Rights Act at http://www2.dol.gov/elaws/userra0.htm
     A resignation which was given at the request of his employer, and seniority provisions in the collective bargaining agreement did not deprive a military reservist of his right to reemployment as his prior Sheriff's Dept. rank, under the Uniformed Services Employment and Reemployment Rights Act. Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 2000 U.S. Dist. Lexis 17418 (W.D. Mich.). [2001 FP 41-2]
     A resignation given at the request of his employer, and seniority provisions in the collective bargaining agreement did not deprive a reservist of his right to reemployment as his prior rank, under the Uniformed Services Employment and Reemployment Rights Act. Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 2000 U.S. Dist. Lexis 17418 (W.D. Mich.). [2001 FP 25-6]
     Appeals court rejects challenge to FBI's rule against agents serving in the Ready Reserve. Federal intelligence services are exempt from the USERRA. Dew v. U.S., #98-6102, 192 F.3d 366, 1999 U.S. App. Lexis 23710, 162 LRRM (BNA) 2327 (2nd Cir.). [2000 FP 11]
     Police officers who were wrongfully denied permission to serve in the National Guard are not untitled to compensation for lost wages prior to the enactment of the 1986 Veterans Rights law. Fox v. Baltimore Police Dept., 201 F.3d 526, 2000 U.S. App. Lexis 425 (4th Cir.). {N/R}
     Fact that a police officer who is Army Reservist has not actually been denied a promotion does not preclude his lawsuit that the city violated the USERRA by not considering him for promotion. Brandsasse v. City of Suffolk, 72 F.Supp.2d 608, 1999 U.S. Dist. Lexis 16630, 163 LRRM (BNA) 2099 (E.D. Va. 1999). {N/R}
     Although federal law does not provide for paid military leave, Minnesota public agencies must count time that firefighters spend on military leave towards their base hours for purposes of computing overtime. State law provides that military duty for public employees shall be without loss of pay. Boelter v. City of Coon Rapids, 67 F.Supp.2d 1040, 1999 U.S. Dist. Lexis 14788, 5 WH Cases2d 1261, 162 LRRM 2833 (D.Minn. 1999). {N/R}
     Obligations of employers and rights of reservists outlined; 1994 law made substantive changes since last major call-up. 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S. Code 4301 et seq. (P.L. 103-353; 108 Stat. 3149). [1999 FP 87-93]
     City could unilaterally cease a past practice of compensating employees on military leave where the bargaining agreement expressly provided that leave shall be according to state law.
     Palo Alto (City of) and P.A. Prof. F/F L-1319, 107 LA (BNA) 494 (Riker, 1996). [1997 FP 25]
     Uniformed Services Employment and Reemployment Rights Act of 1994 enacted Oct. 13, 1994. Codifies existing court decisions and define rights of military reservists. P.L. 103-353; 108 Stat. 3149; 38 U.S. Code 4301-33. {N/R}
     City was not required to pay police officer while on active duty, with the National Guard, because the officer voluntarily opted to use his annual leave for this purpose. Lancto v. City of Rawlins, 892 P.2d 800 (Wyo. 1995). {N/R}
     Minnesota firefighters on military leave were entitled to be paid for 24-hours for each duty day missed. Employment agreement could not supercede state law. Howe v. City of St. Cloud, 515 N.W.2d 77 (Minn.App. 1994). [1995 FP 58-9]
     Federal court orders reinstatement of untenured Desert Storm veteran; his "suspension" pending an internal investigation was pretextual. Simmons v. Didario, 796 F.Supp. 166 (E.D.Pa. 1992). [1993 FP 57]
     Supreme Court declines to impose a “reasonableness” provision in military leave legislation. National Guard members, reservists, enlistees and inductees have the same rights to reemployment. King v. St. Vincent’s Hosp., 112 S.Ct. 570, 60 LW 4061 (1991). [1992 FP 26]
     Obligations of employers and rights of reservists outlined. Carter v. U.S., 407 F.2d 1238 (D.C. Cir. 1968). See also, Green v. Spartan, 1982 U.S. Dist. Lexis 16100, 112 LRRM (BNA) 2099 (W.D. Mich. 1982) and Boyle v. Bd. of Police Cmsnrs. (below). [1991 FP 41-5]
     Federal appeals court strikes down Baltimore's limit on number of police officers who can be military reservists and awards damages to plaintiff for his lost benefits he would have earned. Kolkhorst v. Tilghman, 897 F.2d 1282 (4th Cir. 1990); Cert. denied 502 U.S. 1029, 112 S.Ct. 865 (1990). [1991 FP 122-3]
     Federal court refuses to dismiss suit against city that restricted employee participation in the reserves or national guard. Federal law gives reservists and guardsmen the right to sue if employers do not afford them equal treatment without penalty. Boyle v. Bd. of Police Cmsnrs. of Portsmouth, 717 F.Supp. 23 (D.N.H. 1989).
     Federal court holds that a four-year military leave was not unreasonable, despite fact that leave request was only for three years. Lemmon v. Santa Cruz Co., 686 F.Supp. 797 (N.D. Cal. 1988).
     State supreme court reinstates officer who was terminated for signing up for special military training; legal fees awarded. Nichols v. Snohomish Co., 47 Wash. App. 550, 736 P.2d 670; affirmed 109 Wash. 2d 613, 746 P.2d 1208 (1987).
     Federal court rules that state and public employers may not limit the duration of military leaves by restricting the periods a pension can be earned; federal law prevails. Cronin v. Police Dept. of the City of N.Y., 675 F Supp. 847 (S.D.N.Y. 1987).
     Police officer not entitled to 3-year credit for period of military service which interrupted his employment period. Fuller v. State Dept. of Retir. Serv., 106 Wash. 2d 822, 725 P.2d 972 (1986).
     Seniority does not include military service before employee was hired by police or fire dept. Lopez v. City of Shreveport, 449 So.2d 1184 (La. App. 1984).
     City did not have to pay for national guard absence to attend a voluntary class. Matter of Hill v. City of Camden, 463 A.2d 982 (N.J. App. 1983).
     City could reduce pay for employees on military leave to difference between service and city wages; state law not applicable due to home rule character of ordinance. Northern Ohio Patrolmen's Benev. Assn. v. City of Parma, 402 N.E.2d 519 (Ohio 1980).
     Department cannot ban membership in state national guard. City of West Haven and AFCME Local 895, 79-1 ARB ¶ 8143, 79 PBC (CCH) ¶ 45,151 (1979).
     Military service protective legislation will not assist a firefighter who misses "merit" promotions. State ex rel. Owen v. City of Salem, 537 P.2d 1154 (Ore. App. 1975).
     See also: Veterans" Preference Laws.