September 30, 2011

USERRA: Don’t Use Your Employer’s Computer, E-mail, or Telephone to Complain about Your Employer – 30 September 2011

By admin

September 30, 2011By Captain Samuel F. Wright, JAGC, USN (Ret.)

1.0—USERRA Generally

I frequently receive e-mails from National Guard and Reserve members, complaining that their civilian employers have violated the Uniformed Services Employment and Reemployment Rights Act (USERRA). All too often, these e-mails come from the employer’s e-mail system. I want to reiterate my recommendation that you not use the employer’s computer, e-mail system, or telephone, or time when you are “on the clock” with the employer, to communicate with me, or with the National Committee for Employer Support of the Guard and Reserve (ESGR), or the Department of Labor (DOL), or your attorney, or anyone else to complain about your employer.

You should get a computer and Internet service at home to send and receive such communications. If you cannot afford such service at home, go to your local public library.

When you log onto your computer at work, you probably have to click on a statement in which you acknowledge that you understand that the employer retains the right to monitor all communications that you send and receive on that computer. In legal terms, this means that you have “no justifiable expectation of privacy” when using the employer’s computer and e-mail system.

Don’t think that you can solve this problem by using the employer’s computer and Internet Service Provider (ISP) to access a web-based e-mail system like Yahoo. If you are using the employer’s computer, you should assume that every e-mail you send and receive (even on your Yahoo account) is being read by your immediate supervisor and by the employer’s personnel office.

While you are on the clock with your employer, you should be doing the employer’s business exclusively. Yes, I realize that there must be exceptions. If your child gets sick at school, the school must call you at work. All employees have such emergencies from time to time. There should not be additional “emergencies” because you are a member of the National Guard or Reserve.

The military full-timers who deal routinely with Reserve Component (RC) personnel need to understand that the RC member not on active duty should not be called at his or her civilian job except in a rare dire emergency. Civilian employers are putting up with a great deal since the terrorist attacks of September 11, 2001. Let’s say employee Joe Smith has been called up three times in the last decade and is expecting a fourth call-up early next year. When he is not on active duty, do not tax the employer’s patience still further by routinely calling him at work about military matters, and do not expect Joe to do military work while at his civilian job.

If the employer is annoyed with Joe Smith because of his repeated calls to the colors, and if the employer is looking for an excuse to fire Smith, the last thing that Smith should do is to give the employer the excuse she is looking for. Thus, Smith should scrupulously avoid doing any RC work (or other activity unrelated to the civilian job) while on the clock or while using the employer’s equipment.

When I worked for ESGR (1994-95 and 2002-05), I recall many instances when I could hear street noise in the background of the incoming call. The RC member had snuck out from his or her job to call ESGR from the sidewalk, using a cell phone or pay phone.

I want to make it possible for RC members to call the Service Members Law Center without having to call from work or during work hours. Accordingly, I am here at my desk, answering the telephone, until 10 p.m. Eastern time every Thursday, in addition to my regular work hours of 8 a.m. to 4 p.m. on weekdays. Thursday evening is a good time to call me. 800-809-9448, extension 730. If I don’t answer, it is probably because I am speaking to another service member. Leave me a message, and I will call you back promptly.

ESGR answers its toll-free telephone line (800-336-4590) between the hours of 8 a.m. and 6 p.m. Eastern time Monday through Friday. You can access ESGR 24 hours per day, 365 days per year, via the organization’s website, www.esgr.mil. You can submit your inquiry or complaint via that website, or you can send an e-mail to userra@osd.mil. Give ESGR your home phone or cell phone and a time (whatever hour of day) when an ESGR case manager can call you.

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