American servicemembers are returning from the battlefields of Afghanistan and Iraq to find that the jobs they left behind no longer exist. The Uniformed Services Employment and Reemployment Rights Act (USERRA) is supposed to guarantee that members of the armed services will not suffer adverse employment repercussions on the basis of their military service. Despite USERRA's substantial protections, servicemembers continue to fear that they will lose their jobs upon deployment or face significant reductions in pay and benefits upon returning to work. To qualify for the benefits of the statute, a servicemember must "reapply" for his old position. The Supreme Court has directed lower courts to give the statute a liberal construction for the benefit of those who have served their country. Lower courts have generally followed the Supreme Court's guidance by giving USERRA's application requirement liberal construction. However, some courts have employed overly technical interpretations of the application requirement of the Act, depriving individuals of valuable rights. This Note analyzes the relevant legislative history and case law of USERRA and its predecessor statutes, and concludes that a minority of courts have given insufficient effect to the remedial intent of the Act. This Note suggests either a judicial or legislative solution to remedy potentially harsh results for servicemembers. This Note argues in favor of the Second Circuit's interpretation of the application requirement, which provides that technical failures in the form of the application should not prevent USERRA's rehiring mandate from obligating the employer to reinstate the servicemember. An adjustment to the "application" requirement will provide clarity for employers and aid servicemembers in securing their rights under USERRA.
Andrew P. Sparks,
From the Desert to the Courtroom: The Uniformed Services Employment and Reemployment Rights Act,
61 Hastings L.J. 773
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol61/iss3/6