Imatges de pàgina
PDF
EPUB

declines to take legal action. Yet the fact that these cases were not successfully resolved in the VETS process, or that they were based on contested legal issues under the USERRA suggests that the referral process should have a clear government backed outcome or conclusion. A reporting requirement could at least identify the disposition of cases left unresolved in the VETS referral process.

MOAA fully endorses the goal of resolving USERRA cases amicably. In most cases America's employers have gone the extra mile to support their mobilized employees during these stressful times. Because DoD plans to activate Guard and Reserve servicemembers every five or six years for the foreseeable future, we believe that additional resources must be made available to the VETS (DOL) and Employer Support of the Guard and Reserve offices (DoD) so that they may adequately accomplish their missions.

At the same time, we believe the Committee and the stakeholder community - reservistveterans, employers, and advocates - need to have a clearer understanding of the actions and accomplishments of the Attorney General's office and Office of Special Counsel in prosecuting clear violations of the USERRA.

MOAA supports the reinstatement of reporting requirements under the USERRA.

H.R. 4477, Patriotic Employer Act of 2004.

H.R. 4477 would further amend the USERRA by requiring employers to post in the workplace for persons entitled to USERRA protections a notice of the rights, benefits, and obligations of National Guard and Reserve employees and their employers under the statute. The bill sponsor is Rep. James P. McGovern (D-MA).

MOAA believes H.R.4477 would advance the outreach requirement established in
Section 4333 of the USERRA and, accordingly, we support its enactment.

At the same time, MOAA believes that this action alone would not educate employers and reservists on how to interpret the law's provisions in the myriad circumstances involving employment and reemployment situations covered under the statute.

For this reason, MOAA continues to recommend amending the USERRA to require, rather than permit, the DoL to develop and promulgate implementing regulations in the Code of Federal Regulations (CFR) for the Act. DoL should also be required to publish a handbook illustrating the types of cases that come up under the USERRA and how they were resolved.

Other USERRA Issues.

[ocr errors]

Escalator Principle and Merit Raise Problem. The escalator principle of the USERRA requires that each returning servicemember actually step back into the seniority escalator at the point the person would have occupied if the person had remained continuously employed. The application of the principle to merit pay increases that are based on annual evaluations is less certain. For example, an employer tells a reservist returning to the workplace that the company will not award a pay increase

because it is based on a performance evaluation of actual work performed. The theory in such cases is that since the mobilized reservist performed no work for the employer during the activation, an evaluation would not have been performed, and therefore a merit pay increase would not be awarded when the reservist returned to the workplace.

MOAA recommends clarifying the escalator principle to ensure that reemployed servicemembers are not denied merit pay increases based on the lack of a scheduled performance evaluation during military absence. We recommend, for example, that an average of two or three previous merit increases, if awarded, be used to set a reemployment pay increase.

· State Employees. [38 USC Sec. 4323]. In 1998, Congress amended the USERRA to permit the DoL to refer a complaint from a State employee covered by the Act to the Attorney General. In practice, however, unless the Attorney General agrees to take on such cases, reservists returning from active duty to State employment have no legal recourse under the law.

[ocr errors]

The United States Supreme Court has ruled in a number of cases interpreting the Eleventh Amendment of the Constitution that individual employees have no right to sue their State employers, unless the State waives its sovereign immunity under various federal laws. As a result, although USERRA specifically provides that a person may initiate an action for relief against a State for its violation of the USERRA, persons harmed by State violations of the statute lack important remedies to vindicate the rights and benefits that are available to all other persons covered by the law. Unless a State chooses to waive sovereign immunity, or the Attorney General brings an action on their behalf, persons affected by State violations of USERRA may have no adequate Federal remedy for such violations. A failure to provide a private right of action by persons affected by State violations of USERRA would leave vindication of their rights and benefits under that Act solely to Federal agencies, which may fail to take necessary and appropriate action because of administrative overburden or other reasons.

MOAA is working with a number of stakeholders to identify cases that would demonstrate the potential need to further amend the USERRA in order to protect the reemployment rights of State employees returning from active military service. We will provide such information to the Committee as it becomes available.

Non-functioning role of the Office of Special Counsel. [38 USC Section 4324] Section 4324 provides for the enforcement of rights for Federal Executive Agencies. The statute authorizes the Secretary of Labor to refer a complaint for litigation under the USERRA before the Merit Systems Protection Board (MSPB). If the Special Counsel is satisfied that the servicemember's rights under the USERRA have been violated, the Special Counsel is authorized to represent the servicemember before the Merit Systems Protection Board.

All well and good, but the Office of Special Counsel has never represented a member
of the Guard or Reserve before the MSPB, and it apparently has neither the intention
nor the resources to do so. Consequently, returning servicemembers who wish to file
a claim under USERRA against a Federal Executive Agency employer must hire
counsel or represent themselves directly before the MSPB. It is our understanding
that the MSPB has ruled on at least 100 cases brought before it by Guard and
Reserve federal employees. But that record does not justify the indifference of the
Office of Special Counsel, especially in cases where employees may not have the
resources to pay for counsel or adequately represent themselves.

MOAA recommends strengthening the right to counsel for National Guard and
Reserve servicemembers who wish to pursue a complaint against a Federal
Executive Agency employer.

· Inclusion of NOAA Corps Officers in USERRA.

H.R.

MOAA recommends inclusion of the Commissioned Corps of the National Oceanic and Atmospheric Administration (NOAA Corps) in Section 4303, Definitions, of the USERRA. NOAA Corps officers serve on active duty, as defined in Title 10 and Title 37, and receive pay and benefits commensurate with their status as members of the uniformed services, including the U.S. Public Health Service. Like USPHS officers, NOAA Corps officers may be transferred to the Army, Navy or Air Force in time of war or national emergency.

The NOAA Corps is included in the basic definition of "uniformed services" as set forth in Section 101(a)(5) of Title 10, USC. Accordingly, the NOAA Corps was improperly excluded from the comprehensive revision of employment and reemployment rights laws enacted in 1994 after the first Gulf War.

MOAA recommends including the NOAA Corps in the USERRA.

[ocr errors]

Servicemembers Legal Protection Act of 2004.

This draft legislation would amend the Servicemembers Civil Relief Act by clarifying and extending certain legal and economic protections for servicemembers on active duty. MOAA deeply appreciates the leadership of the Committee and the hard work of the Committee staff in crafting needed improvements to the Soldiers' and Sailors' Civil Relief Act, enacted last year as the Servicemembers Civil Relief Act (SCRA), P.L. 108-189.

The draft legislation before the Committee today makes additional improvements to the statute that recognizes the changed circumstances of military service in our volunteer forces today.

MOAA notes in particular that the draft bill would clarify that dependents as well as servicemembers are covered by SCRA's residential and motor vehicle lease provisions on joint leases. The change recognizes that servicemembers often are deployed into harms way on short notice leaving their dependents to make economic decisions back home. The change provides additional flexibility for military families and MOAA fully supports it.

The draft bill also would amend the lease termination provision to apply when the servicemember has permanent change of station orders from a State outside the continental United States to any location outside that State; for example, from Hawaii or Alaska to the 48 contiguous States or a foreign duty station.

In addition, the lease termination provisions would be amended to clarify that the term "military orders" as used in the SCRA would mean "official military orders, or any notification, certification, or verification from the servicemember's commanding officer, with respect the servicemember's current or future military duty status." This change is important in today's high personnel and operational tempo environment in which members of the National Guard and Reserve are called to active duty on short or no notice and their “military orders” can and do take many forms.

The draft SCRA bill would include a provision to prevent double taxation of servicemembers when the laws of a tax jurisdiction do not provide a credit against use, excise or similar taxes the servicemember previously paid to another tax jurisdiction.

MOAA strongly supports enactment of the draft “Servicemembers' Legal Protection Act of 2004."

H.R. 3779, the “Safeguarding Schoolchildren of Deployed Soldiers Act of 2004."

H.R. 3779 would amend the SCRA to help the school age children to be treated as residents when the military service of parents causes a change of residence. The bill would treat a child who changes residence based on the military service of a parent and at the parent's request, as if the child held the residence before the change of residence took place, for the purposes of enrollment in elementary or secondary school.

A case in New York State was brought to our attention on this issue. MOAA worked with our colleagues in the National Military Family Association (NMFA) and we are pleased to see that Rep. Louise Slaughter (D-NY) has introduced H.R. 3779, the "Safeguarding Schoolchildren of Deployed Soldiers Act of 2004," to address the issue. Residency changes arising from military service should not cause unintended enrollment and economic problems in military families with schoolchildren.

MOAA fully supports H.R. 3779 and recommends the Committee favorably report the bill.

The Military Officers Association of America appreciates this opportunity to appear before the House Committee on Veterans Affairs on the issue of improving the Uniformed Services Employment and Reemployment Rights Act and the Servicemembers Civil Relief Act. Your work on behalf of our nation's servicemembers and veterans is very important to them and their families and we appreciate your leadership in defending their legitimate reemployment and economic needs as they put themselves in harms way to defend the nation.

[blocks in formation]
« AnteriorContinua »