Vol. 76, No. 7, July 2003

Protecting Legal Rights of Activated Guards and Reservists

by Stephen J. McManus

A longtime client rushes into your office on a Friday afternoon and tells you that the President has activated his National Guard unit - he will be leaving soon for some undisclosed location in support of military operations in the Persian Gulf. He confides that he can no longer afford his monthly bills (including a leased car and three credit card bills) because his pay will be cut in half, and he wonders what to do about his pending divorce. To make matters worse, his employer is threatening to fire him, and he just signed a yearlong lease. How can you help him?

Most attorneys in Wisconsin rarely encounter these issues because our state's military community is composed primarily of National Guard and reserve units, such as the General Mitchell Air Reserve Station, Volk Field, and Fort McCoy, rather than active duty members. However, with military operations currently ongoing in the Balkans, the Persian Gulf, and Afghanistan, many of Wisconsin's National Guard and reserves members have been activated; nationally, more than 220,000 reservists and guards have been activated into full-time federal status.¹ With this dramatic increase in active military members, it is important to revisit two federal statutes that affect military members and their legal rights.

Soldiers' and Sailors' Civil Relief Act

The Soldiers' and Sailors' Civil Relief Act of 1940² (SSCRA) contains a variety of provisions to protect active duty military members serving in a federal capacity under Title 10 of the United States Code. The military members would include newly enlisted recruits for active duty units or reservists and guards who are activated into federal status. The SSCRA can assist dependents of military members in a Title 10 status, when the dependent's ability to uphold the terms of a contract, lease, obligation, or bailment has been impaired by the member's military service,³ or others who are secondarily liable for a member's obligations, such as a guarantor.⁴ With the rights and protections afforded these military members and dependents, the reality is that the SSCRA can affect just about anyone, especially since the SSCRA should be read "with an eye friendly to those who dropped their affairs to answer their country's call."⁵ It is the member's or dependent's responsibility to invoke the SSCRA's protections, and failure to do so does not permit a later cause of action to retrieve the lost remedy.⁶ Below are the important protections the SSCRA has granted active duty military members.

Interest rate reduction. One of the SSCRA's main provisions allows active duty military members to reduce their interest rate to no more than 6 percent, but only for debts that existed before entry into active duty.⁷ Guard and reservist members normally are not on active duty, so if a member is activated for a federal service, such as Operation Iraqi Freedom, that activation is a triggering event that allows the member to take advantage of this provision. The types of interest rates that may be reduced include, but are not limited to, mortgages, credit card debts, and automobile loans. The SSCRA does not, however, apply to federally insured student loans.⁸ The creditor is not allowed to charge the military member any fee for reducing the interest rate. For example, a mortgage company cannot require the debtor to "refinance" in order to obtain the lower interest rate. To invoke this right, the member's "ability to pay" the debt must be affected by his or her entry into active duty, but it is the creditor who has the burden to prove the member's ability to pay is not affected.

Future financial arrangement. A similar provision protects members in future financial arrangements despite invoking the SSCRA provisions in the past.⁹ Specifically, the SSCRA forbids reporting to a credit bureau a member who has invoked an SSCRA right and then using the invocation of right to deny credit. There is, however, a caveat: The "safe harbor" does not prevent an institution from reporting a member's failure to comply with an underlying obligation.

Stay of court proceedings. Another main provision is the ability to stay civil court¹⁰ and bankruptcy¹¹ proceedings. This provision does not apply to administrative proceedings.¹² When the member requests the stay, it does not matter whether the military member is the plaintiff or the defendant, and the court may grant a stay of up to the period of service plus 60 days.¹³ It should be noted that just because a party is a military member does not guarantee the court will stay the proceeding. Section 521 of the U.S.C. states that the court proceeding "shall ... be stayed ... unless ... the ability of [the military member] is not materially affected by reason of his military service." (Emphasis added.) The courts have not, however, always followed the "shall." In determining whether to grant the stay, the court may look at the military member's availability, actual prejudice to the member,¹⁴ reasonableness of the request,¹⁵ alternatives to a stay,¹⁶ or bad faith by the member.¹⁷ In Artis-Wergin v. Artis-Wergin,¹⁸ the Wisconsin Court of Appeals held that a military member was not entitled to a second stay in a divorce proceeding when the first stay had expired, the member had ample notice of the subsequent court date, and the member failed to request another stay.¹⁹

Default judgments. Similar to the stay of court proceedings, the SSCRA allows a military member to reopen a default judgment entered against him or her while on active duty.²⁰ Before a default judgment may be entered, the plaintiff should be required to complete an affidavit of nonmilitary service for the defendant. Under the SSCRA, failure to comply with this requirement makes the default judgment voidable. In order to reopen the default judgment, the member could not have made an appearance, the judgment must be entered while the member is on active duty or within 30 days after termination of service, the member must apply to the court within 90 days of leaving military service, military service must have prejudiced the ability to defend, and the military member must have a meritorious defense.²¹

Storage liens. Anyone with a storage lien may not exercise the right of foreclosure or enforce any lien during the member's period of military service plus three months, except by court order.²² Remember, however, that the member can request a stay in proceedings or void a default judgment as noted above.

Tolling of the statute of limitation. The SSCRA also tolls the statute of limitation during the member's period of military service for both civil and administrative proceedings; it does not matter whether the member is the plaintiff or the defendant.²³ The U.S. Supreme Court has said that the tolling applies regardless of whether the military member was inducted or had volunteered and also that there is no requirement to show material effect.²⁴

Mortgages and deeds of trust. When the ability of a member to pay under a mortgage or deed of trust is affected by military service, the court shall either stay or "make other such disposition of the case as may be equitable to conserve the interests of all parties."²⁵ No sale, foreclosure, or seizure of property shall be valid if made during the period of military service or within three months thereafter unless upon an order previously granted by the court and a second petition to the court that is approved. This provision only applies to real estate owned prior to the active military service and still used by the military member. Anyone who takes action contrary to this provision is subject to criminal sanctions.²⁶

Eviction protection. In an eviction action, any active duty member whose monthly rent does not exceed $1,200 per month is entitled to a three-month stay unless the court finds no material effect of the eviction.²⁷ There are also criminal penalties for the creditor who violates this provision.

Leases. The SSCRA also allows an activated member to get out of any lease that may have been signed before entering into active duty. The member must give written notice to the landlord that the member is terminating the lease. The landlord can charge rent for 30 days after the next rent due date following the date the member gives written notice. For example, if the member gives notice on Feb. 15 and the next rent is due on March 1, then the landlord can charge the member rent until March 31. The key is to deliver written notice to the landlord as soon as possible. Any lease entered into after becoming an active duty military member is not voidable unless the lease provides otherwise.

Medical insurance. A member activated for more than 30 days will be provided family medical insurance through the military medical facilities or the military's insurance program. The SSCRA allows the military member to suspend any civilian insurance coverage and requires the civilian insurance company to reinstate coverage when the member leaves active duty.²⁸ Furthermore, the civilian insurance company cannot refuse to cover most "preexisting conditions."

Professional liability insurance. A similar provision protects professional liability policy holders.²⁹ This may include such professionals as doctors, lawyers, veterinarians, and nurses.

Installment contracts and auto leases. No creditor can rescind or terminate an installment contract for either real or personal property or repossess the property for nonpayment of any installment due under the contract except by court order. This provision prohibits self-help repossession of any item purchased on an installment contract.³⁰

Federal taxes. Under the SSCRA, reserve and guard personnel might qualify for a deferral of taxes owed if the member can show his or her ability to pay taxes has been impaired because of military service. The deferral applies to taxes that fall due before or during military service and extends the payment deadline six months (180 days) after the military service ends. The deferral is not automatic; a member must apply for it. When applying, the member must prove both an inability to pay the tax and that this inability resulted from military service. The taxpayer must also have received a notice of tax due, or be in an installment agreement with the IRS, before applying for the deferral. The deferral is limited to the initial period of service and does not extend into any reenlistment periods. For officers who qualify, the deferral is limited to two years.³¹

Although not under the SSCRA, military members serving in a designated combat zone may have a part or all of their income excluded from taxation. In Executive Order No. 12744,³² the Arabian Peninsula was designated a combat zone. The Arabian Peninsula includes the Persian Gulf, the Red Sea, the Gulf of Oman, and the countries of Iraq, Kuwait, Saudi Arabia, Oman, Bahrain, Qatar, and United Arab Emirates. For commissioned officers, the exclusion is capped. Military members also may receive hostile fire and imminent danger pay, both of which are nontaxable income.³³

State of residency. The SSCRA allows a service member to maintain his or her state of legal residency or domiciliary; this state may tax the member's military income.³⁴ Specifically, under the SSCRA, a military member cannot acquire or lose residency solely by residing in a given state pursuant to military order, and the military income is deemed to be earned in the state of domicile. For example, a reserve member of General Mitchell Air Reserve Station, Wisconsin, may live in Chicago and claim Illinois as his or her state of residency. The member may then be activated and be assigned full-time duties at either General Mitchell or some undisclosed foreign country with General Mitchell remaining the home station. Under the SSCRA's protection, the member remains an Illinois resident, and any income earned is taxed by Illinois, not Wisconsin. The importance of this provision is that Illinois does not tax military members' income if that income is earned outside of Illinois, but Wisconsin does.

Catch-all provision. A member may, at any time during military service or within six months thereafter, apply to a court for relief from any obligation or liability, including any tax or assessment, the member incurred prior to active service. The court may then grant stays of enforcement during which no fine or penalty shall accrue, if military service affected the member's ability to comply with the obligation or pay the tax or assessment.³⁵

Uniformed Services Employment and Reemployment Rights Act

The second federal law that is important to revisit is the Uniformed Services Employment and Reemployment Rights Act of 1994³⁶ (USERRA). The USERRA protects the civilian jobs of reservists and guards who take leave from their civilian jobs for military duty. In analyzing this statute, it is important to identify how the statute becomes applicable, the employee's rights while on USERRA leave, the employee's reinstatement rights, and how the reservist enforces these rights.

Applying USERRA Protections

Affected employers. The USERRA applies to all employers, regardless of size, including government entities, such as public schools, the Veterans Administration, and the post office.³⁷

Affected employees. The USERRA protects all employees who are members of a "uniformed service." The "uniformed services" are the Army, Navy, Air Force, Marine Corps, Coast Guard, and their reserves; the Army and Air National Guards, including persons in training periods; the Public Health Service commissioned corps; and other categories designated by the President in times of emergency.³⁸ This protection is regardless of length of service or part-time status (with the exception of employees who have worked for brief, nonrecurrent periods that cannot reasonably be expected to continue indefinitely or for a significant period. An example of the brief, nonrecurrent work may be a food server who is hired by a caterer for a one-time event.) The USERRA does not, however, apply to a temporary position,³⁹ but the Seventh Circuit has held that seasonal jobs may not necessarily be temporary.⁴⁰ The USERRA also does not include dependents within the class of protected employees.

Protections. The USERRA provides:

1) enhanced leave rights (up to five years) and job protection (reinstatement with seniority) for employees absent for military duty; and

2) prohibitions against discrimination in employment and retaliation against any person who was, is, or applies to be, a member of a "uniformed service," or who performs or has an obligation to perform "service in a uniformed service."⁴¹

Service defined. Service includes voluntary and involuntary active duty, active duty for training, initial active duty for training, inactive duty training, and full-time National Guard duty (for example, when recalled for state disaster, riots, and so on). It also includes any absence needed for an examination to determine whether a person is fit to perform military duty.⁴²

Notice to employer. An employee, or the appropriate officer of the military branch in which the employee will be serving, must give the employer advance written or oral notice of the need for USERRA leave.⁴³ The USERRA does not specify how much notice must be given. However, advance notice is not required if military necessity prevents the giving of such notice or it would be unreasonable or impossible to give.⁴⁴

Length of military leave. The USERRA's reemployment rights apply only to members whose cumulative period of uniformed service does not exceed five years while employed by the same employer.⁴⁵ There are several types of services that are not counted as part of the five-year total. Some of the exemptions are identified below, but for purposes of the current military operations, any reservist activated for Operation Enduring Freedom or Operation Iraqi Freedom is most likely exempted from the five-year cumulative total because the military service is for a war or national emergency. Some of the other exemptions are for 1) time spent in National Guard and reserve training, as certified by the Secretary of Defense (such as the two-week annual tour and monthly weekend drills); 2) the member's inability to obtain release orders before expiration of the five-year period through no fault of his or her own; and 3) an order to active duty, as determined by the Secretary of Defense, in support of certain operational or critical missions (unless the extension is for training).

Rights While on USERRA Leave

Salary continuation. The employer is not required to pay an employee who is on USERRA leave, as the Act only requires unpaid leave. An employee may take vacation, personal days, or other paid leave (collectively referred to as "vacation days"), and thus be paid for a part of his or her military leave, but an employer may not require the employee to use any vacation days. Some employers have opted to make up the difference between a member's military and civilian pay, but there is no requirement for the employer to do this.

Health insurance. The USERRA requires the employer to allow any employee on a USERRA leave to elect to pay for continuation of group health coverage for the member or the member's dependents under any health care plan provided in connection with the member's employment. This coverage ends after 18 months or, if earlier, on the date the reservist fails to return or apply for return to employment as required. The employee electing this coverage may be required to pay up to 102 percent of the full cost associated with coverage for other employees (similar to the COBRA requirement). If the period of military service is less than 31 days, the employer must continue health insurance as if the employee was actively employed and can require the employee to pay only the employee's regular share of the cost. If the coverage is terminated while the employee is on USERRA leave (either because the employee elects not to continue the coverage, because the period of service exceeds 18 months, or for any other reason), the employee and dependents may not be subjected to waiting periods or preexisting condition exclusions upon reinstatement.⁴⁶

Pension benefits. The USERRA requires the employer to treat the period of USERRA leave as "service" with the employer for purposes of vesting and the accrual of benefits. Further, the period of USERRA leave may not be treated as a "break in service" under a pension plan. On reemployment of the reservist, the employer must make any employer contributions to the pension plan that would have been required on behalf of the returning employee had the employee continued working for the employer during the period of USERRA leave.⁴⁷ Similarly, the returning reservist must be allowed to make up any employee contributions or elective deferrals the member would have been eligible to make during the period of USERRA leave.⁴⁸

Vacations and other seniority-based benefits. Employees returning from USERRA leave are entitled to any seniority-based benefits that they had when their USERRA leave began, and also those benefits that would have accrued had they remained continuously employed. Thus, if an employer's vacation policy is based on seniority, in calculating how many weeks of vacation the returning reservist receives, the employer must count the years of USERRA leave as years of actual work. However, the employer does not have to allow the returning employee to accrue vacation while on USERRA leave, unless the employer allows other employees on other types of leave to do so. In addition, with respect to benefits not determined by seniority, the employer must treat employees on USERRA leave the same as other employees on a leave of absence. Likewise, if an employee would have been entitled to a promotion or increase in pay during the USERRA leave, or to test for a promotion, the employee would be entitled to these benefits upon return to work for the employer.⁴⁹

USERRA Reinstatement Rights

Notice requirement. Upon completion of the military service, the returning service member must notify the employer that he or she intends to return to employment.⁵⁰ The deadline by which the member must contact the employer depends on the amount of time spent in military service, as follows:⁵¹

1) Service of 30 or fewer days. The returning member must report to the employer on the first full regularly scheduled work period on the first full calendar day following completion of the service, plus eight hours after a period allowing for safe transportation back from the place of the reservist's service. For example, if a reservist works Monday through Friday at a bank, completes a weekend reserve drill at 4 p.m. on Sunday, and then takes four hours to drive home, the reservist would not be required to return to work at the bank until Tuesday morning, because that is the "first full calendar day" when calculating the driving and rest time. If, however, the reservist is done by 3 p.m. and lives only 30 minutes from the military installation, the reservist would need to return to work on Monday morning.

If it is impossible or unreasonable for the member to report within that period through no fault of his or her own, the member must report as soon as possible. This reporting period also applies to an employee who is absent from work for an examination to determine fitness for military service.⁵²

2) Service of 31 to 180 days. The member must apply for reemployment within 14 days after military service ends or, if it is impossible or unreasonable to report within that period through no fault of the member, on the next calendar day on which it is possible.

3) Service of more than 180 days. The returning member must apply for reemployment within 90 days of the end of military service.

4) Service-incurred or aggravated injury. If the returning member is hospitalized for, or convalescing from, an illness or injury that was incurred in or aggravated by the military service, the above reporting deadlines may be extended for up to two years while the member is recovering. Under certain circumstances, this two-year deadline may be extended.⁵³

Reemployment obligations. The USERRA requires that any returning member who receives a certificate showing satisfactory completion of military service must be restored to the member's previous employment.⁵⁴ The type of position to which the member must be reinstated depends on the period of military service and on the member's abilities at the time of reinstatement. The following time frames apply:

1) Service of 90 or fewer days. The member must be "promptly reemployed" in the position the member would have held if the member had continued in employment without interruption for military service, if the member is qualified for that position or can become qualified after reasonable efforts by the employer to qualify the member.⁵⁵ If the member would have been promoted except for the military leave, but cannot be qualified for the new position after reasonable employer efforts, the member may be employed in the position that was held when military service began.⁵⁶

2) Service of 91 days or more. The member must be reemployed in the position the employee would have held except for the interruption for military service, or in a position of like seniority, status, and pay, if qualified for that position. If the member would have been promoted except for the military leave, but cannot be qualified for either that new position or an equivalent one despite the employer's reasonable efforts, the returning member must be reemployed in the position held when the period of military service began, or in a position of like seniority, status, and pay.⁵⁷

3) Members who cannot be qualified for the job. If the returning employee cannot be qualified for the job the employee would have held or the position formerly held after the employer's reasonable efforts, and the member's inability to qualify is not related to a service-incurred or aggravated disability, the member must be reemployed in any position of lower status and pay for which the member is qualified, but with "full seniority."⁵⁸

4) Service-incurred or aggravated disability. A disabled veteran whose disability was incurred or aggravated by military service and who cannot perform the job he or she would have held on return, even after reasonable accommodation by the employer, must be reemployed in:

a) any other position of equivalent seniority, status, and pay for which the veteran is qualified or could become qualified through the employer's reasonable efforts; or

b) the position most nearly approximate (in terms of seniority, status, and pay) to the position in item 1), consistent with the veteran's circumstances.⁵⁹

Note that the USERRA requires the returning member to be "promptly reemployed."⁶⁰ What is considered "prompt" generally depends on the particular facts and circumstances, including how long the member has been on military leave.

Escalator principle. In many cases, the position the employee would have held had the employment not been interrupted by the military service will be the same as the position the member held when the service began. When there would have been a change, however, the "escalator principle" requires that the member receive any change in position or benefits to which the member would have been entitled had the member remained continuously employed.⁶¹ This then allows the member to "actually step back on the seniority escalator at the point the person would have occupied if the person had remained continuously employed."⁶²

Rights and benefits. Rights and benefits can be either seniority-based⁶³ or not.⁶⁴ Seniority-based rights are determined by or accrued with length of service; for these rights, the member must receive all other "perquisites of seniority."⁶⁵ For example, pay raises based on longevity and promotions based on longevity or length of service the member was reasonably certain to have achieved should be granted the returning employee.

Rights and benefits that are not based upon seniority will be treated as if the member was on a leave of absence or furlough.⁶⁶ If there are varying types of nonmilitary absences, the member is entitled to the most favorable treatment.⁶⁷ For example, the Department of Labor has stated that the hours a reservist would have worked, but for military service, are to be counted when determining whether a military member is entitled to take leave under the Family and Medical Leave Act.⁶⁸

Sometimes the distinction between the two is not very clear. For example, vacation and sick days may be either seniority-based or not.⁶⁹

Lay offs. If a member is laid off while on military leave, and would have received severance pay had the member been actively employed at the time of the layoff, the member is entitled to that severance pay upon returning from military leave. Moreover, if the member was laid off and was on a recall list when the member entered military service, the member must be returned to the recall list on completion of the military service.⁷⁰

Failure to report or reapply. A returning member who fails to report to or work to apply for employment or reemployment within the specified time periods does not automatically forfeit the entitlement to reemployment; rather, the member is subject to the employer's established conduct rules, policies, and general practices pertaining to explanations and discipline with respect to absence from scheduled work.⁷¹

Exception to reemployment obligation. The USERRA specifies certain limited circumstances in which an employer is relieved of its obligation to reemploy members returning from military service. The burden is on the employer to prove that one of these exceptions applies.⁷² These circumstances include:

1) Less than honorable or general discharge. If a returning member is separated from uniformed service via a court-martial with a dishonorable or a bad-conduct discharge (enlisted) or a dismissal (officer), or separated administratively with an other-than-honorable conditions discharge, the rights to reemployment and other USERRA protections end.⁷³ The characterization of a member's service is annotated on a Department of Defense (DD) Form 214.

2) Change in the employer's circumstances. If reemployment is "unreasonable or impossible" because the employer's circumstances have changed, the employer may deny reinstatement. For example, if the member's job has been eliminated in a reduction-in-force, reinstatement is not required.⁷⁴ However, this exemption is not available merely because the member's former position has been filled or no opening exists.⁷⁵

3) Employment of a disabled veteran would cause an undue hardship. Reinstatement may be denied if the employment of a veteran who has a service-incurred or aggravated disability would cause an undue hardship to the employer, after reasonable efforts to accommodate the disability have been exhausted.⁷⁶

Upon the employer's request, the reservist must supply documentation to establish that the application is timely, the military service has not exceeded the permissible limits, and the entitlement to USERRA protections has not been terminated due to the member's release from service under anything other than honorable conditions.⁷⁷

Termination protection. The USERRA also protects returning members from discharge without cause for a period of time after reemployment. If the military service lasted between 31 and 180 days, the member may not be terminated without cause for 180 days after the date of reemployment.⁷⁸ If the member's military service was more than 180 days, this protection applies for one year after reemployment.⁷⁹ Members with fewer than 31 days of military service do not have protection against discharge without cause, but like other returning members, they are protected from discrimination based on military service or a continuing military service obligation.

Enforcing USERRA Rights

The U.S. Secretary of Labor is empowered to provide reemployment assistance to veterans through the Veterans' Employment and Training Service (VETS) of the Department of Labor.⁸⁰ VETS will investigate complaints and attempt to resolve them, and a veteran who believes that he or she has been discriminated against has the option of filing a complaint with VETS.⁸¹

VETS has the statutory right to examine and duplicate employer and employee documents relevant to its investigation, and also has the right of reasonable access to interview persons with relevant information, together with power to subpoena the attendance and testimony of witnesses and to compel the production of documents relating to any matter under investigation.⁸²

Veterans whose complaints are not successfully resolved by VETS may request that their complaints be submitted to the U.S. Attorney General for possible court action. If the Attorney General is satisfied that the complaint is meritorious, the Attorney General may file a court action on the veteran's behalf. In addition, veterans have the option of filing their own individual court actions. Veterans may do so if they have chosen not to file a complaint with VETS, have chosen not to request that VETS refer that complaint to the U.S. Attorney General, or have refused representation by the Attorney General.

An award of back pay or lost benefits may be doubled in cases in which violations of the USERRA are found to be "willful."⁸³ "Willful" is not defined in the USERRA, but the legislative history indicates that "willful" is defined the same way as it is in U.S. Supreme Court cases under the federal Age Discrimination in Employment Act. Under that definition, a violation is "willful" if the employer's conduct was knowingly or recklessly in disregard of the law.⁸⁴

At the court's discretion, an award of attorney fees, expert witness fees, and other litigation expenses may be granted to the successful veteran who retains private counsel. The USERRA prohibits charging court fees and costs against anyone who brings a private suit under the USERRA.⁸⁵

Wisconsin Statutory Requirements

Like the USERRA,⁸⁶ reservists also are protected against discrimination under the Wisconsin Fair Employment Act.⁸⁷ Employers must not discriminate against an applicant who is a member of the National Guard or reserves.⁸⁸ Wisconsin also has a veterans reemployment statute,⁸⁹ but generally, the USERRA provides greater reemployment protection. Finally, a Wisconsin veteran may have additional benefits with the Wisconsin Department of Veteran Affairs.⁹⁰

Conclusion

With this information, you are better able to advise and assist your longtime client. Now you can request a stay in the divorce proceeding, send SSCRA interest reduction letters to creditors, void the rental agreement, and inform the employer of your client's USERRA rights.

Endnotes

¹"National Guard and Reserve Mobilized as of May 21, 2003," www.defenselink.mil/news, May 21, 2003.

²50 U.S.C. app. §§ 501-548.

³50 U.S.C. app. § 536.

⁴50 U.S.C. app. § 513.

⁵Le Maistre v. Leffers, 333 U.S. 1, 6 (1948).

⁶McMurtry v. City of Largo, 837 F. Supp. 1155 (M.D. Fla. 1993) (no federal cause of action or federal jurisdiction for a soldier's failure to use remedy under SSCRA).

⁷50 U.S.C. app. § 526.

⁸20 U.S.C. § 1078(d).

⁹50 U.S.C. app. § 518.

¹⁰50 U.S.C. app. § 521.

¹¹In re Ladner, 156 B.R. 664 (Bankr. D. Colo. 1993).

¹²The Welfare Reform Act of 1996, Pub. L. No. 104-193, §§ 325, 363, 110 Stat. 2105 (1996), requires states to set up administrative proceedings to expedite handling of child support and paternity claims that are not subject to SSCRA stay protection.

¹³50 U.S.C. app. § 521.

¹⁴50 U.S.C. app. § 521. See Starling v. Harris, 151 S.E.2d 163 (Ga. Ct. App. 1966) (personal injury case in which member was only eye witness); Mays v. Tharpe & Brooks Inc., 240 S.E.2d 159 (Ga. Ct. App. 1977) (large financial dispute in which member sued on promissory note).

¹⁵Keefe v. Spangenberg, 533 F. Supp. 49, 50 (W.D. Okla. 1981) (court granted a one-month continuance but denied a stay until the end of enlistment period).

¹⁶Id. (court suggested member agree to videotape deposition pursuant to Fed. R. Civ. P. 30(B)(4)).

¹⁷Hibbard v. Hibbard, 431 N.W.2d 637 (Neb. 1988) (stay denied when member in contempt of court for refusing to comply with visitation orders).

¹⁸115 Wis. 2d 445, 444 N.W.2d 750 (Ct. App. 1989).

¹⁹But see Kasubaski v. Kasubaski, 1996 Wis. App. LEXIS 1014 (Ct. App. 1996) (unpublished) (court criticized Artis-Wergin as being too harsh and wrongly decided).

²⁰50 U.S.C. app. § 520.

²¹50 U.S.C. app. § 520(4).

²²50 U.S.C. app. § 535.

²³50 U.S.C. app. § 525.

²⁴Conroy v. Aniskoff, 507 U.S. 511 (1993).

²⁵50 U.S.C. app. § 532(2).

²⁶50 U.S.C. app. § 532(4).

²⁷50 U.S.C. app. § 530.

²⁸50 U.S.C. app. § 593.

²⁹50 U.S.C. app. § 592.

³⁰50 U.S.C. app. § 531.

³¹"Reservists, New Enlistees May Get Deferral for Back Taxes," Updated Tax Tip 2003-41, March 11, 2003, Internal Revenue Service, at www.irs.gov/newsroom/article/0,id=108001,00.html.

³²56 Fed. Reg. 2663 (Jan. 23, 1991).

³³"Tax Relief for Those Involved in Operation Iraqi Freedom," Notice 2003-21, Internal Revenue Service, at www.irs.gov/pub/irs-drop/n-03-21.pdf 119 KB.

³⁴50 U.S.C. app. § 574.

³⁵50 U.S.C. app. § 590.

³⁶38 U.S.C. §§ 4301-4333.

³⁷38 U.S.C. § 4303(4).

³⁸38 U.S.C. § 4303(16).

³⁹38 U.S.C. § 4312(d)(1)(C).

⁴⁰Under a previous version of USERRA, see Foor v. Torrington Co., 170 F.2d 487 (7th Cir. 1948).

⁴¹38 U.S.C. § 4312(a)(2).

⁴²38 U.S.C. § 4303.

⁴³38 U.S.C. § 4312(a)(1), (b).

⁴⁴38 U.S.C. § 4312(b).

⁴⁵38 U.S.C. § 4312(a)(2)

⁴⁶38 U.S.C. § 4317.

⁴⁷38 U.S.C. § 4318(a)(2).

⁴⁸38 U.S.C. § 4318(b)(2).

⁴⁹38 U.S.C. § 4316.

⁵⁰38 U.S.C. § 4312(a).

⁵¹38 U.S.C. § 4312(e).

⁵²Id.

⁵³38 U.S.C. § 4312(e)(2)(A).

⁵⁴38 U.S.C. § 4312(a).

⁵⁵38 U.S.C. § 4313(a)(1)(A).

⁵⁶38 U.S.C. § 4313(a)(1)(B).

⁵⁷38 U.S.C. § 4313(a)(2).

⁵⁸38 U.S.C. § 4313(a)(4).

⁵⁹38 U.S.C. §§ 4301(a)(A)(ii), 4304(d).

⁶⁰38 U.S.C. § 4313(a).

⁶¹38 U.S.C. § 4316(a). See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946).

⁶²Veterans Employment and Training Service, The U.S. Department of Labor, A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA) (2001), at https://www.dol.gov/agencies/vets/programs/userra/USERRA%20Pocket%20Guide 140 KB.

⁶³38 U.S.C. § 4316(a).

⁶⁴38 U.S.C. § 4316(b).

⁶⁵Capt. Samuel F. Wright, USNR, Vacation Rights Under USERRA, 59 Reserve Officers Ass'n L. Rev. (2002), at www.roa.org/home/law_review_59.asp.

⁶⁶38 U.S.C. § 4316(b)(1)(A).

⁶⁷See supra note 62.

⁶⁸Veterans Employment and Training Service, The U.S. Department of Labor, Protection of Uniformed Service Members' Rights to Family and Medical Leave (2002), at www.dol.gov/vets/media/fmlarights.pdf 1.70 MB.

⁶⁹See supra note 65.

⁷⁰See supra note 62.

⁷¹38 U.S.C. § 4312(e)(3).

⁷²38 U.S.C. § 4312(d)(2)(C).

⁷³38 U.S.C. § 4304.

⁷⁴38 U.S.C. § 4312(d)(1). Under the prior law, the Seventh Circuit held that "unreasonable" was "more than inconvenient or undesirable." See Levine v. Berman, 161 F.2d 386, 389 (7th Cir. 1947) (citing Kay v. General Cable Corp., 144 F.2d 653, 655 (3d Cir. 1944)).

⁷⁵38 U.S.C. § 4312(d)(1)(A).

⁷⁶38 U.S.C. § 4313(a)(3).

⁷⁷38 U.S.C. § 4304.

⁷⁸38 U.S.C. § 4304(c).

⁷⁹38 U.S.C. § 4304(b)(1).

⁸⁰VETS can be reached by telephone at (866) 4-USA-DOL ((866) 487-2365) or online at www.dol.gov/vets/.

⁸¹38 U.S.C. §§ 4321-4326.

⁸²38 U.S.C. § 4326(a), (b).

⁸³38 U.S.C. § 4323(d)(1)(C).

⁸⁴See supra note 62.

⁸⁵38 U.S.C. §§ 4323(h)(2), 4326(c)(2)(A).

⁸⁶38 U.S.C. § 4311.

⁸⁷Wis. Stat. §§ 111.31-.395.

⁸⁸Wis. Stat. §§ 111.31, .322(1).

⁸⁹Wis. Stat § 45.50.

⁹⁰A benefit summary can be found at dva.state.wi.us/Ben_cvso.asp.

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