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Some employees left out of USERRA

Q. I worked as a Transportation Security Administration screener but was recently fired because I took “excessive” amounts of military leave. I thought that the Uniformed Services Employment and Reemployment Rights Act protected people from being fired because of military service.

A. USERRA does indeed protect people from being fired because of military service. It applies to all employers with at least one employee, with certain very rare exceptions. Unfortunately for you, you are subject to one of those very rare exceptions. The Air Transportation and Security Act denies TSA security screeners and their supervisors from many employment protections afforded to other employees, both in the federal and private sector.

The Federal Circuit — the second highest court in the country for federal appeals, second only to the Supreme Court — has ruled that the Merit Systems Protection Board cannot exercise jurisdiction over a USERRA appeal filed by an applicant for a security screener position with the TSA. The case is Conyers v. Merit Systems Protection Board. This limitation also applies to supervisory screeners — see Spain v. Department of Homeland Security.

However, the TSA voluntarily allows the Labor Department and Office of Special Counsel to investigate alleged USERRA complaints. (See Government Accountability Office’s Report 07-907, page 33, footnote 1.)

The bottom line is that TSA screeners and people seeking such positions have no enforceable USERRA rights, and only a statutory amendment can give them an effective remedy.

This fix is included in my suggestions to Congress on how to strengthen USERRA. Unfortunately, I am not sure that this change will be made anytime soon. This state of affairs runs contrary to section 4301(b) of USERRA, which expresses the “sense of Congress that the Federal Government should be a model employer in carrying out the provisions of this chapter.”

TSA screeners should enjoy the same USERRA rights as almost all other employees in this country, including federal employees, state and local government employees, and employees in the private sector.

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Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytiumes.com.

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