Recent Case Highlights Appropriate USERRA Limits

Some business advocates – not too many, I hope – criticize the Uniformed Servicemember Employment and Re-employment Rights Act (USERRA) as being unfair and one-sided. This is the law that is intended to protect a military servicemember’s right to return to his or her pre-service employment without penalty. It does provide broad protections for the military servicemember. But it is not one sided.

Most importantly in my view, it provides that disputes between an employer and a military employee be settled in that all-American forum – a jury trial.

I know many people criticize juries when they return verdicts that one side or the other does not like or understand. High profile criminal cases frequently produce such a response. But, in my humble opinion (I guess that’s “IMHO” to many who are younger than me) a group of conscientious Americans who swear to pay attention, listen to the evidence, and follow the law is the best way to get a common sense resolution of just about any factual dispute.

The recent case of Coast Guard Chief William Bunting and his employer, the police department of Ocean City, Maryland is instructive. Chief Bunting claimed he was passed over for promotion to Lieutenant on Ocean City’s police force because of his absence for military duty. The Town of OC claimed he was not selected because he was not the best qualified. After a few false starts (including a trip to the 4th Circuit Federal Court of Appeals) a jury of Ocean City-area residents finally heard the case. While the jury felt that Ocean City had not done everything properly, it concluded that Bunting would not have been promoted under any circumstances because he was not the best qualified applicant. Sounds like a common-sense adjudication of the facts to me.

You can read a lot more about the details of this case on the web site of the Reserve Officers Association of the United States (www.roa.org) There you will find information about their Servicemembers Law Center. Full disclosure – I was once the Executive Director of that organization, but no longer have any connection other than being an ROA member. But the Servicemembers Law Center is a valuable resource. Its director, retired Navy Captain Sam Wright, has written more about USERRA law than anyone else in the country. His work is archived on the site.