America Thanks You for Your Service. Welcome Home - YOU'RE FIRED!

Life as we know it has forever changed in the wake of September 11, 2001. However, life for those serving in the United States Armed Forces Reserves, that phrase has a very different meaning. Many national guardsmen, reserve soldiers, sailors, airmen and marines dropped their proverbial plow, donned their desert camouflage uniforms and grabbed their weapon of choice before leaving their families, friends and jobs to go and fight in the Middle East. Life as what is often referred to as a ‘citizen-soldier’ can be very challenging. Not only does the reserve service member need to make a living for his/her family, as we all do, but simultaneously that individual is required to maintain a specified level of physical fitness and military skill for which there is often no civilian counter-part. Doctors, lawyers and the like have it a little easier in that their professional skill sets are the same, or at least sufficiently similar, both in the military and civilian worlds. Those, however, who do the ‘real’ military work such as Army and Marine infantrymen, Naval gunners and Air Force navigators are truly talented men and women who live a dual professional life. Ordinarily, they are the individuals who have the drive, intelligence and force of personality that make them most attractive to civilian employers. Once, however, they are required to actually leave their civilian jobs for more than the traditional two week annual training period the employer, who had once heralded them in Stentorian tone for their patriotic service, often does not want to deal with the hassle or inconvenience of re-employing them upon return from military service.


The First Gulf War caught much of the world unaware. The United States had recently down-sized the active military forces and for the first time since WWII had to command a significant number of National Guard and Reserve units onto active duty in order to meet the ‘threat.’ After having put the menacing threat to rest in Promethean style, many of America’s heroes returned home only to find that they had been replaced in the civilian work force. Not only could GI Joe and GI Jane not get their old jobs back, but many discovered that as long as the threat of continued hostility loomed on the political horizon, prospective employers showed a dulled enthusiasm for offering them even the most paltry professional opportunities.

Employers, looking at ‘the bottom line’, wanted a stable work force. While GI Joe and GI Jane reigned in George H.W. Bush’s nemesis, Sadaam, life in the United States went on much unaffected and that meant the employer still had a business to run and customer’s to service. Take for instance a ‘mom-and-pop’ type auto repair shop. The geopolitical ramifications of Sadaam’s evil simply did not impact their daily business and while GI Joe and GI Jane were combating the ‘elite Republican Iraqi Guard’ they still had to repair automobiles for their customers in home-town America, who were also largely unaffected by the war and wanted their cars fixed. So the auto-barn in middle-America hired a new mechanic and when GI Joe or GI Jane returned, ‘mom and pop’ were reticent to fire the ‘new guy’ and let Joe or Jane have their job back, for two reasons: 1) the new guy was doing a good job and, after all, he had a family to support as well; and 2) GI Joe or GI Jane will run off again at the first sign of trouble some place else in the world that simply does not amount to a rodent’s posterior here in middle-America and then the new guy will be working some place else and we will have to start all over again training yet another ‘new guy.’


Well, that hardly seems fair! In summary, GI Joe or GI Jane leave their family and go into harm’s way in order to protect interests that our elected leaders tell us are paramount to our continued prosperity; often times the reserve military member takes a cut in pay for the privilege of putting his/her life in danger; and the thanks received for his/her patriotic service is relegation into a pool of unemployable, or at least under-employable, individuals that may or may not be re-called to military service in the future! In the meantime, GI Joe and GI Jane still have a family to support. Without pay from the Armed Forces, because they have been dismissed from military service with a heartfelt “thank you” from the Commander-in-Chief, the service member then realizes that getting out of the military is the only way to truly provide for his/her family. In short, our self-focus and avaricious lust caused a brain-drain from the military following the First Gulf War.


In order to combat the loss of sorely needed experience throughout the Armed Forces, Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA). Essentially, USERRA created legally enforceable employment and re-employment rights for military members. USERRA specifically requires an employer to ‘hold’ a military member’s job for a certain period of time during a call to active duty. If the employer fails to re-employ the military member upon his/her return, and subject to certain notification requirements by the military member, then a ‘private cause of action’ is created. In other words, the military member can sue the employer. However, many employers are now heard to complain that the USERRA requirements are ‘unfair’ and ‘regressive’ because larger employers can bare the weight of holding a job more readily then small business. Some argue that, like the Family Medical Leave Act, an employer should first be required to have a specific number of employees before the law applies.


As we welcome home many heroes from places like Afghanastan, Iraq and Qatar it is imperative that we deal with the issue, which is as old as war itself, of re-integrating service men and women into the civilian work force. Today, however, unlike the late 1940s following WWII, re-integration is more challenging because the “War on Terrorism” has had little impact on mainstream America. Notwithstanding the longer airport security lines, there are few daily reminders that America’s sons and daughters are fighting and dying as we go about our rapacious routine. So is the answer to grant service members the right to ‘sue?’ Will introducing more lawsuits into our already litigious society right the wrong? Who pays the lawyers? How does GI Joe or GI Jane support his/her family during the pending court action? Does USERRA rightfully protect the interests of America’s heroes as a reward for having secured our collective liberty; or does USERRA amount to what Frederic Bastiat warned as an entitlement society? These questions and more will be addressed in a more substantial work on the subject of USERRA – “America Thanks You for Your Service. Welcome Home – You’re Fired!”