The analytical risk management (ARM) process is a systematic and interactive approach for identifying and evaluating assets, potential threats, and existing vulnerabilities, along with calculating risks and determining requisite countermeasures.¹ Departments can view the ARM process as three interacting spheres of assets, threats, and vulnerabilities. Where these three areas merge, or overlap, are the calculated risks. Once a department’s risk managers determine the risks, then they can select appropriate countermeasure options to mitigate them. Most important, ARM can service both security and operational assessments.

The ARM process expresses risk, defined as the potential destruction, disruption, or denial of essential assets, in the formula Risk = Impact of Loss of Asset x Threat x Vulnerability or R = I x T x V. In other words, a risk assessment (R) determines the possibility of an adversary’s (T) successful exploitation of an identified vulnerability (V) and the resulting degree of damage or impact (I) on the asset. Basically, risk management constitutes the continuing process of selecting and applying explicit countermeasures to achieve optimum results while balancing acceptable risks and costs. By developing a full-spectrum risk assessment and management program, a department can discover its security and operational strengths and weaknesses. In addition, it can determine how best to maximize asset usage.

ASSETS

For the ARM process, assets comprise resources of essential value that a department must protect to effectively fulfill its essential public safety and law enforcement responsibilities, a definition that differs from that traditionally used in law enforcement and intelligence circles. Assets include people, information, operations, equipment, facilities, and social-psychological resources (PIOEFS).

Assessing assets involves three sequential actions. First, a department’s risk managers identify all important local organizational and operational PIOEFS resources requiring protection. Second, they write a brief statement for each describing the worst undesirable event should some adverse situation affect that asset. For example, within the people category, a department should include law enforcement officers as a critical asset, and an applicable undesirable event would be criminals or terrorists attacking with improvised explosive devices that could result in the loss or injury of the officers.

Third, the risk managers assign a linguistic rating (value/ criticality) to each asset based on the impact of loss or damage. This means that risk mangers first assess an asset according to one of the four defined criticality ratings of critical, high, medium, and low and then further refine the resource into three values of low, medium, or high.

• Critical: grave effects leading to loss of life, serious injury, or mission failure.

• High: serious effects resulting in loss of highly sensitive resources that would impair operations affecting public safety and community interests for an extended period of time.

• Medium: moderate effects resulting in loss of sensitive resources that could impair operations affecting public safety and community interests for a limited period of time.

• Low: little or no effects impacting human life or the continuation of operations affecting public safety and community interests.

In the example of officers as a critical asset, the department might assign an impact rating of low/critical, meaning that it deemed the resource as overall critical but at the lower end of that category. Finally, the risk managers convert the linguistic ratings into numeric impact values. The numeric value will be impact (I) in the equation I x T x V = R. Chart 1 and Table A illustrate this process.

RISK CALCULATION

Risk is the likelihood that an undesirable event will occur. By calculating the risk, the department may obtain an estimate of the potential severity or outcome of an undesirable event. Calculating the risk for each identified asset involves recording the degree of impact relative to each asset (value of I), the probability of attack by a potential adversary (value of T), and the possibility of a vulnerability being exploited (value of V) and then multiplying I x T x V. After this, the risk managers would convert the numeric values into ratings and prioritize the risks based on findings, remembering that higher values indicate higher risks. Table A and Chart 4 illustrate this process.

Chart 2 - Threat Assessment Example

COUNTERMEASURES

Countermeasures are actions taken to prevent, mitigate, or eliminate vulnerabilities and to enhance security or operations. Universal methods include improving training and awareness, modifying policies and procedures, practicing and enforcing discipline, controlling and monitoring accesses, installing new security or operational measures, improving overall conditions, and realigning efforts. Departments can identify and assess many potential countermeasures that they may use to reduce vulnerabilities by exploring as many solutions as possible; by developing a comprehensive strategy toward risk reduction; by discovering countermeasure costs, including tangible training, additional personnel, materials, installation, operations, maintenance, and replacement requirements; by conducting cost-to-benefit analysis for each option and comparing appropriate alternatives; and by prioritizing options based on one or a combination of factors, such as cost, time, effort, organizational impact, resources available, and other specified criteria. Chart 5 presents an example and the following are universal countermeasure options to enhance the security of PIOEFS assets.

Facilities

Centralized facilities and decentralized law enforcement activities present unique cooperative security and operational challenges. Departments can mitigate these by improving three-dimensional security perimeters with multiple rings and layers of mutually supporting protection; by assessing adjacent establishments as pathways for attacks and correcting gaps where possible; by protecting off-site locations with complementing security measures; and by providing separate visitor- and package-screening accommodations.

Social-Psychological Factors

Adversarial manipulations of public and organizational perceptions affect community support and internal morale. Departments may lessen social-psychological threats by recognizing the importance of community and individual concerns; by earning and preserving the public’s trust and confidence; by understanding the impact of social, cultural, political, religious, and psychological influences in daily operational security practices; and by deterring, detecting, and defeating internal security and operational problems promptly and decisively.

RISK ASSESSMENT REPORTING

Producing a comprehensive security risk assessment (SRA) report highlighting all findings and recommendations can enable senior officials to make well-informed mitigation decisions. Accurate judgments are based on methodical assessments of known factors and on harnessing the collective input from subject-matter experts to derive acceptable levels of risk and courses of action.

Based on available and projected resources, decision makers may implement countermeasures in varying intensities or at select locations, or they may accept risk conditions based on existing priorities, resources, and threat status. An SRA report should contain several components.

• Executive summary highlighting the major findings, requests, and suggestions

• Background information defining the purpose of the assessment

• Overview describing ARM to familiarize readers with the process

• Status of any related assessment reports received from other agencies and substations
  
• Detailed findings of assessed assets, threats, and vulnerabilities

• Review of calculated security or operational risks

• Countermeasure options, including the types and quantities desired

• Critical concerns and prioritized specific problems

• Detailed recommendations and external support requests

• A security program plan describing the department’s plan of action (e.g., goals, objectives, and actions) to mitigate risks

• Discussion of planning, programming, and budgeting requirements

• Overall lessons learned and information for sharing

• Predictive risk analysis discussing future risks and preventive measures

• Summary and conclusion recapping major findings and recommendations

Chart 5 - Countermeasure Assessment Example

FUTURE CHALLENGES

The character of emerging threats is changing rapidly. Today, law enforcement agencies are challenged by multiple asymmetric perils: domestic violence, criminal enterprises, white-collar crimes, cyber based offenses, transient agitators, public corruption, and assorted threats of terrorism. Emerging threats include old, reemerging dangers, such as increasing street gang violence and the influence of incarcerated criminals continuing to conduct unlawful enterprises from prisons; the use of assorted improvised explosive devices (IEDs); the increasing menace of weapons of mass destruction potentially involving chemical, biological, radiological, nuclear, and high-explosive devices; new alliances and symbiotic relationships between criminals, terrorists, and foreign governments, in which criminals and foreign intelligence services exchange resources (e.g., weapons, information, money, and hostages) with terrorists; and still-undetected hidden dangers.

A New Generation of Adversaries

The acronym CAS-DRI-VARS may characterize some fundamental operating methods that free-ranging adversaries exploit throughout the world.

• Creative: applying innovative use of the ancient arts of unconventional warfare

• Asymmetrical: launching multifaceted physical, political, informational, and cyber attacks

• Secretive: cloaking in multiple layers and compartmented cells

• Deceptive: misleading and manipulative in their intent and behavior

• Resourceful: maximizing the use of available resources to achieve their objectives

• Intelligent: capitalizing on detailed planning and orchestration

• Visionary: foreseeing the third and fourth order of effects of their actions

• Adaptable: evolving and adjusting with each new countermeasure

• Ruthless: striking with brute violence against the innocents

• Sophisticated: employing intricate ploys and strategies

CONCLUSION

Identifying and thoroughly understanding local and regional threats give law enforcement agencies a distinct advantage in better preparing for a wide range of risks and challenges. Today’s criminals, extremists, and terrorists continue to practice the ancient principles of lawlessness: striking when and where they are most ready and when they perceive that the law is absent or its enforcers are least prepared. Departments must be able to recognize potential threats and have plans of action to counter a myriad of internal and external risks.

Assessments can provide risk managers and decision makers with a baseline of vital information and collective trends that ultimately impacts strategic planning efforts. Reports give focus for future security and operational initiatives via the opportunity to realign priorities, update monetary funding, and share lessons learned with the public safety community.

Endnotes

¹ The FBI recently completed an assessment to evaluate its own security posture using ARM, which the U.S. Security Policy Board’s Risk Management Training Group developed. The FBI’s version of ARM involves a six-step process that identifies an organization’s assets, threats, vulnerabilities, risks, and needed countermeasures and then develops a security risk assessment (SRA) report.

Please forward questions, comments, and suggestions to deanlee@leo.gov or phone Dr. Lee at 202-324-3173. The FBI’s Security Division fully supports the dedicated law enforcement professionals serving communities throughout the United States and the free world.

The first in-depth study of early warning systems found that 27 percent of the agencies surveyed in 1999 had such a mechanism in place while another 12 percent planned on implementing one.¹³ The participating agencies were police departments employing a minimum of 80 officers and serving populations of at least 50,000. However, 87 percent of police departments in the United States have fewer than 25 sworn officers.¹⁴ So, while less than 40 percent of the large agencies surveyed either had or planned to have an early warning system in 1999, the majority of police departments in the country most likely did not have nor plan on implementing such a system at the time.

If administered properly, an early warning and detection system should allow the department to quickly intervene and help modify the behavior of the officers identified. Moreover, a successful early detection system not only can identify negative behavior but also can recognize conduct worthy of commendation.¹⁵ The study further indicated that early warning systems substantially reduced citizen complaints and other problematic behavior. For example, three large police departments with early warning systems in effect for at least 4 years had substantially fewer citizen complaints and use-of-force incidents after the intervention. A successful system can benefit the entire agency, the community, and the troubled or problem officer with prompt intervention administered properly. Experts stress that using an early warning system to punish officers will undermine its effectiveness, but applying the information learned from the data to counsel and train them will expand its value.¹⁶

Some departments have successfully employed early warning systems for over a decade with beneficial results.¹⁷ However, these programs still may not accurately identify every specific pattern of behavior that may ultimately lead to misconduct. In addition, the study found that no standards had been established for identifying officers in the early warning systems examined. Instead, only a general agreement existed on some of the criteria that should influence their selection.¹⁸ These issues demonstrate that agencies must carefully analyze the information compiled on their personnel and establish strict selection guidelines to ensure that they correctly determine those officers in need of intervention.

Finally, the study noted that the implementation of an early warning system can prove compatible with both problem-oriented and community policing. The law enforcement administrator can incorporate the warning system into the department’s overall philosophy and goals, recognizing that the new system must involve counseling and training as the main objective in modifying the behaviors of the officers selected and flagged for intervention. The administrator, however, must remember that the police union and the officers may suspect a new warning system and possibly resist its implementation. One early warning discipline system stressed the police union’s involvement in the process prior to implementation of a program that provided predictable sanctions agreed upon by management and the union.¹⁹ Because most complaints by unions involve the unequal treatment of personnel and ambiguous, unknown, or unpredictable punishments, this system established a disciplinary matrix with minimum and maximum penalties and ensured that the administration and the collective bargaining unit agreed upon predictable, reliable, equitable, and valid sanctions. Such involvement by the union or collective bargaining unit can greatly increase the success of an early warning system.

Positive Change

Law enforcement agencies throughout this country generally have pursued a traditional approach when dealing with officer misconduct.²⁰ Most have dealt with this issue through reactive as opposed to proactive efforts, primarily using citizen and internal complaints to identify such behavior. In addition, most departments impose corrective action only after the misconduct has occurred.

To effect positive change in the behavior of the few officers that create the majority of problems, departments must begin to take sufficient action against those repeatedly accused of excessive force and continually look for patterns in officer conduct.²¹ They also must seriously discipline such personnel, not merely reassign them to other duties. Finally, agencies must provide troubled officers with counseling and other services. As one official said, “We have a tendency to go from zero to 60, by focusing only on the egregious, but not having a system to correct or discipline the behavior that is nonegregious.”²²

Officers who have exhibited less than stellar behavior need help to return to their former standards of professionalism. Departments should endeavor to find out what these officers need to overcome their problems and, once again, become valuable, contributing members of their profession. To this end, an early warning system can offer an effective approach for agencies to use.

Conclusion

Today’s law enforcement administrators must identify problem officers and intervene appropriately with counseling, training, and other methods in an attempt to modify and change their behavior. Managers will benefit their departments, communities, and problem officers with the implementation of a properly administered early warning system. Such an approach can help agencies combat the disturbing trend that seems to indicate that they disregard officer misconduct.

Early warning systems demonstrate that departments and administrators have developed a clear policy regarding misconduct, have put a program in place to correct negative behavior, and have made a good-faith effort to identify employees whose performance is less than satisfactory.²³ The majority of their officers who valiantly place themselves in harm’s way every day to protect the citizens of their communities deserve no less.

Wanted: Photographs

The Bulletin staff is always on the lookout for dynamic, law enforcement-related photos for possible publication in the magazine. We are interested in photos that visually depict the many aspects of the law enforcement profession and illustrate the various tasks law enforcement personnel perform.

We can use either black-and-white glossy or color prints or slides, although we prefer prints (5x7 or 8x10). We will give appropriate credit to photographers when their work appears in the magazine. Contributors should send duplicate, not original, prints as we do not accept responsibility for damaged or lost prints. Send photographs to: Art Director FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.

DOBs Edwards used: 6/14/61, 6/15/60, 6/14/58, 6/15/61 Edwards’
FBI number: 41518W11
SSANs Edwards used: 552-43-8728, 553-47-2874
Edwards’ physical description: Height: 5’8" Weight: 150 lbs. Hair: Brown Eyes: Blue
Aliases Edwards used: Kirk Edward Bell, Paul Robert Smith, Mark Edward Robert, Mark R. Edwards, Bobby Edwards, Jim Portillo, James Mark Portillo, Rob Edwards

Any agency that believes Edwards’ modus operandi might match their cold cases should contact SSA Jim McNamara, Federal Bureau of Investigation, Critical Incident Response Group, Behavioral Analysis Unit-2, at 703-632-4325 for additional information.

Currently incarcerated in California on a first-degree murder conviction, Robert Mark Edwards also was convicted of second-degree murder and five other felony counts in Hawaii. Law enforcement authorities believe he may have committed other homicides, attempted homicides, or violent sexual assaults.

Program Overview

Started in 2000 and supervised by the Leadership Development Institute (LDI),¹ this 1year program serves to enhance the leadership skills of individuals in command-level positions and broaden their exposure to both the domestic and international law enforcement communities. Fellows spend 6 months at the academy and the remaining 6 at their respective agencies or at Quantico for additional research and study.

What separates this program from others that emphasize leadership development? First of all, participants find that living at the academy while interacting with the staff, FBI National Academy (NA) students, and new agent trainees and experiencing a wide selection of training with law enforcement members from around the world provide tremendous value. Additionally, the close proximity to Washington, D.C., offers access to an enormous selection of resources, including museums, federal law enforcement agencies, historic sites, government institutions, and seemingly endless educational opportunities.

Also important is the program’s “trilogy”; participants complete these three components at the end of the fellowship. One, the individual works on projects for the FBI, such as instructing certain classes, organizing training sessions, assisting academy staff with a variety of tasks, and teaching overseas at the International Law Enforcement Academy (ILEA) in Budapest, Hungary.

Two, the participant conducts a research project for the sponsoring agency that brings immediate value to the training. For the assignment, the department head identifies a need for the agency; in addressing this, the fellow has some of the best resources in the world available. The department, the FBI, and the individual all derive substantial benefit from this study.

Three, the participant follows a personal development path, or a list of goals with anticipated outcomes. These could include earning a “yellow brick”² for physical improvement with the FBI NA, reading a certain number of books pertaining to management topics, learning new computer skills, devising a personal or agency wellness plan, or attending leadership development training, such as the Law Enforcement Executive Development Seminar (LEEDS).

Application Process

Interested officers must understand the time and dedication the fellowship demands. The program involves a partnership between the applicant, immediate family members, the head of the sponsoring agency, and the FBI Academy. Sometimes, this also includes friends, other relatives, and the community where the fellow resides. Support from all affected parties is needed, and a signed statement by the department head constitutes one of the requirements for admission. While making this important decision, individuals can gain additional information about the program and its advantages by contacting the FBI Academy and talking with any of the current fellows or obtaining a list of alumni and communicating with former participants.

For consideration, prospective fellows submit a completed application³ to LDI. Each becomes rated on a point system based on several factors, such as law enforcement experience, community involvement, education, and position. Also required as part of the package is supporting documentation, such as newspaper articles and transcripts—the more the applicant includes, the better the chances for acceptance. Organization and clarity help ensure an effective overall presentation.

Prospects can call the program manager regarding status for approximately 30 days after submission of an application. Upon acceptance, individuals will receive a formal letter from the FBI; the agency head also will get a copy. Then, the tasks of scheduling and preparing for this 1-year journey begin.

Outcome Achieved

Fellows will share many of the same experiences and educational benefits, but each also will take away something different. Largely, this is determined by individual choice. For example, one participant may travel to Europe to instruct at ILEA, while another may assist with a presentation at one of the regional command colleges in the United States. Fellows will find a lot of flexibility for optimizing their involvement in the program.

How does participation in the fellowship benefit the sponsoring agency? Its command-level personnel enjoy enrichment through the interaction with the course material, instructors, and students; strengthening of their organizational skills; enhanced networking, through which they gain valuable relationships that will aid them upon their return to duty; and improved confidence, experience, and professionalism.

Also, the program can help department heads prepare for the future. In this regard, chiefs can use it to ensure that command staff members have the necessary tools for maintaining or improving the current status of law enforcement in the communities they serve. The fellowship has graduated individuals that live in areas located across the United States and abroad, and the concentrated studies and hands-on involvement by participants have been observed as a significant benefit to agencies both large and small.

Conclusion

Law enforcement agencies continually face new challenges in an ever-changing world. Department leaders need preparation to address them. To this end, the FBI Academy’s Leadership Fellows Program can help. For example, as one fellow stated, “Law enforcement has changed radically since September 11, 2001, and having a command staff member familiar with the FBI Academy and the associated services that the FBI provides has been an important link for obtaining information regarding domestic and international terrorism.”

As departments seek to prepare leaders in their ranks, they realize that no easy method exists. However, this program offers a proven method for accomplishing this goal and represents an important consideration for agencies in this country and abroad.

Victims

Crimes Against Persons Age 65 or Older, 1993-2002 presents data from the National Crime Victimization Survey and the Uniform Crime Reports comparing incidents targeting persons 65 years of age or older with those involving younger age groups. Crime rates are presented for murder, rape/sexual assault, robbery, aggravated and simple assault, purse snatching/pocket picking, household burglary, and motor vehicle theft and property theft. The report describes trends in violent and property crimes between 1993 and 2002 and discusses characteristics of the incidents, including injury to victims, self-protective measures used, whether weapons were present, time and place of occurrences, and victim-offender relationships. Crimes include both reported and non reported. This publication is available online at http://www.ojp.usdoj.gov/bjs/abstract/cpa6502.htm or by contacting the National Criminal Justice Reference Service at 800-851-3420.

_{Human Trafficking}

The National Institute of Justice (NIJ) offers Characteristics of Chinese Human Smugglers, which presents findings of a study that uncovered the inner workings of Chinese human smuggling organizations by going right to the source—the smugglers themselves. Researchers found that most of these individuals are ordinary citizens whose social networks provide the necessary connections and resources to profit from human trade. Enforcement efforts require consideration of the unique organization of smuggling enterprises and how smugglers are perceived by themselves and their clients. This report is available electronically at http://www.ncjrs.org/pdffiles1/nij/204989.pdf or by calling the National Criminal Justice Reference Service at 800-851-3420.

Bulletin Reports is an edited collection of criminal justice studies, reports, and project findings. Send your material for consideration to: FBI Law Enforcement Bulletin, Room 201, Madison Building, FBI Academy, Quantico, VA 22135. (NOTE: The material in this section is intended to be strictly an information source and should not be considered an endorsement by the FBI for any product or service.)

Legal Digest

Serving Their Country and Their Communities
The Uniformed Services Employment and Reemployment Rights Act of 1994

Hundreds of thousands of “citizen soldiers” have been called to active duty in the military since the events of September 11, 2001. These citizen soldiers leave their families and jobs behind, often leaving with questions about their future employment security when they return, as well as benefits, such as health insurance and their pensions, while they are away.¹ In addition, many employers find themselves wondering what responsibilities they owe the departing employees during their absence and upon return to civilian life. Not surprisingly, the law enforcement community presently is dealing quite often with these issues given the significant representation of prior military in law enforcement. Given the impact continued military service can have on the personal and professional lives of law enforcement personnel, it is important that both law enforcement employers and employees who leave to perform military duty have an understanding of the rights and obligations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).²

This article provides a general overview of the background and purpose behind USERRA in addition to the rights and obligations of the employee and employer and the prohibition against discrimination based on active duty. Issues addressed include the right to reemployment, the impact active duty has on benefits, such as health insurance and pensions, and notice requirements imposed on both employers and employees. The article is intended only as a general overview of key aspects of USERRA. For more specific information, the reader may want to refer to the U.S. Department of Labor (DOL) at http://www.dol.gov. In this Web site, the DOL’s Veterans’ Employment and Training Services (VETS) has published extensive information regarding USERRA, including proposed regulations interpreting USERRA, published on September 20, 2004.³

BACKGROUND AND SCOPE

USERRA was enacted by Congress in 1994 for the purpose of prohibiting discrimination against individuals because of their voluntary or involuntary military service and encouraging military service by lessening the disadvantages associated with such service when a civilian career is im-pacted.⁴ USERRA has broad application, covering nearly all employees, including part-time and probationary employees, as well as all U.S. employers, whether in the private or public sector and regardless of size.⁵ The term “employer” also includes individuals.⁶ This has been interpreted as allowing an individual seeking enforcement of USERRA to pursue an action not just against the employing entity but also against individuals who have authority within the employing entity regarding the employment decision.⁷

Congress also provided a comprehensive definition of “uniformed services.” This is defined to include employees who serve in the Army, Navy, Air Force, Marine Corps, Coast Guard, as well as all Reserve components of each, the Army or Air National Guard, and the Commissioned Corps of the Public Health Service. In addition, the president has the authority to identify any other category of persons as covered by USERRA during time of war or emergency.

Congress also clarified the type of “uniform service” which triggers the rights and responsibilities provided for in USERRA.⁸ Included within the covered service is duty performed, regardless of whether it is voluntary or involuntary, while in active duty, active duty for training, as well as inactive duty training, and full-time National Guard duty. In addition, an employee’s absence from work to assess the employee’s fitness to take part in any of the above activities also is covered by USERRA. In 2002, Congress expanded USERRA’s reach to include public service performed in a crisis situation by including within the definition of “uniform service” duty performed by intermittent disaster personnel for the Public Health Service, as well as time for taking part in training for such activities. Funeral honor duty performed by National Guard or reserve members also is included.

In addition, to be eligible for reemployment, the uniform service must be under the authority of the military. In other words, the absences must be connected to actual military service. For example, in Leisek v. Brightwood Corp., ⁹ John Leisek, a former employee of a company and a member of the National Guard, sued after he was denied reemployment following his absence to participate in National Guard activities. The Court concluded that he had no right to be reemployed as he was not engaged in “uniformed service” at the time of his absence from his employer. Prior to his absence for the guard, Leisek indicated that he would be engaged in Guard duties at various locations and various dates and asked for time off accordingly. He eventually did receive military orders for some of the dates and locations, but not for all of them. The Court held that he was not serving in the “uniformed services” as to those dates for which he was not under orders to serve.

While USERRA applies to all employers, the units comprising the Ready Reserve¹⁰ by statute must be screened to ensure that there are not large numbers of members with “critical civilian skills,” and that there are no members who, if mobilized, would “...result in extreme…community hardship.”¹¹

PROHIBITION ON DISCRIMINATION

USERRA contains an anti-discrimination provision designed to protect those who have served, as well as those who remain in the military in some capacity, from discrimination. The prohibition against discrimination protects not only on-board employees but applicants for employers as well. An employer is prohibited from denying any person initial employment, reemployment, retention in employment, promotion or any benefit of employment based on an individual’s membership or application for membership and the activities associated therewith, in the uniformed services.¹² The statute also prohibits retaliation against an individual for seeking enforcement of any right secured under USERRA.¹³

Employer discrimination is established by showing the applicant or employee’s military-based activity, whether in the form of an application for membership, performance of service or some obligation of service, was a “motivating factor” in the employer’s decision as opposed to the sole factor.¹⁴ The roadmap for a lawsuit under USERRA calls for the initial burden to be on the plaintiff, who must provide sufficient information to support an allegation of discrimination or retaliation on the basis of military service.¹⁵The employer then may demonstrate that it would have taken the action anyway, without regard to anything protected by USERRA. If the employer successfully demonstrates this non prohibited reason for the employment action, the plaintiff must then establish that the reason offered really is pre-textual and the employment action actually was based on military service. This same litigation roadmap is set forth in USERRA for litigating claims of retaliation.¹⁶

ELIGIBILITY FOR REEMPLOYMENT

USERRA extends reemployment rights to most employees¹⁷who have been absent from their positions because of “service in the uniformed services.” To be eligible for reemployment, the service member must meet the following basic requirements:

• notice must have been given to the employer of service in the uniformed services;

• cumulative period of service must not have exceeded 5 years, unless an exception to the 5-year rule applies;

• departure from the uniformed services was not dishonorable or under other punitive conditions; and

• the requestor must have submitted a timely request for reemployment and reported back to their civilian employer in a timely manner.

USERRA does not require the employer to return employees to the exact same position that they occupied before leaving for military service. The manner that the employer places the employees back into the workforce is structured according to the amount of time the employees were on military leave. If the employees were absent for 1 to 90 days, they must be promptly reemployed in the position that they would have occupied had they remained in continuous employment, provided they are qualified for that position or can become qualified after a relatively short training period.¹⁸ If the employees are not qualified for that position, then the employees must be placed in a position closest to the position described above for which the employees are able to perform.¹⁹In other words, the deployed reservist employees progress as if they had remained in continuous employment.

For employees on military leave for 91 days or more, USERRA provides a hierarchy for the employer to follow. The employer must first consider placement in the job the employees would have held had they remained continuously employed, provided the employees are qualified for a position of like seniority and pay, or if not qualified for such a position, in the position the employees occupied before deployment or one of like seniority and pay.²⁰ If the employees are not qualified to perform any of the above positions, then the employer must place the employees in another position of lesser status and pay, but it must be closest to the above-described positions as possible.²¹ The employer also must provide reasonable opportunities for training to qualify for the higher positions unless to do so would pose an undue hardship to the employer.²²

Time Limits on Service

To qualify for reemployment, the cumulative service generally cannot exceed 5 years. However, exceptions to this 5year prohibition exist. These exceptions include:

• situations in which the service member cannot obtain a release through no fault of their own;

• involuntary service during a domestic emergency or national security crisis;

• service pursuant to an order to remain on active duty because of war or national emergency;

• active duty by volunteers supporting “operational missions” for which members of the Select Reserve have been ordered to active duty without their consent;

• service by volunteers in support of a “critical mission”;

• federal service by members of the National Guard called into service to suppress insurrection; and

• service connected to training.²³

USERRA and Disabled Veterans

USERRA provides for enhanced protections for disabled veterans. When seeking reemployment, employers are required to undertake reasonable efforts to accommodate their disabilities so they can be placed in a position they would have occupied had they remained in continuous employ-ment.²⁴ If an employee, despite the efforts to provide training, is unable to perform the functions required of that position, then the employer must place the employee in a position of equivalent seniority, status and pay, provided the employee is qualified to perform that job. If that fails, then the employee must be placed in a position as close to the above as the employee may be able to perform.²⁵

Time Limits for Reporting Back to Civilian Employment

Once the deployment ends, USERRA provides a timetable for employees to report back to work.²⁶ If the service was less than 30 days or for purposes of taking a fitness exam, the employees must report back to work no later than the first regularly scheduled workday that would fall 8 hours after the end of the calendar day. This may be delayed if circumstances arise out of the control of the employees. If the service is for 31 days up to 180 days, the employees must submit an application for reemployment no later than 14 days after completion of service. For service beyond 180 days, the application must be submitted no more than 90 days after the end of service. For employees injured or disabled as a result of their service, the reporting deadline may be extended.²⁷

USERRA AND SALARY, HEALTH BENEFITS AND PENSION

No Requirement to Provide Paid Leave

USERRA does not require employers to pay employees wages during any period of military leave. An employer, of course, may choose to do so, or may opt to pay, for example, the difference between the military pay and the employee’s regular salary.

Health Benefits

A common concern for reservists activated and deployed is the impact their absence from their civilian job will have on employer-provided health benefits. Generally, if the period of leave is 30 days or less, the employer’s health insurance benefits remain intact. If the leave is for more than 30 days, employees and their dependants should be covered by military-provided health care benefits. In addition, other federal provisions offer reservists protection by enabling them to continue their health care insurance. The Consolidated Omnibus Budget Reconciliation Act (COBRA) and USERRA allow for health care coverage rights to employees after an event in employment such as a reduction in hours worked due to military deployment. This extended coverage is good for a period of up to 18 months.

In addition, the Health Insurance Portability and Accountability Act (HIPPA) also recognizes the ability of some individuals to enroll in another health insurance plan if one is available. For example, spouses may have a health insurance plan available through their employer that they may wish to take advantage of during the time of deployment. HIPPA allows for access to this plan regardless of the existence of set enrollment periods.²⁸

Pensions and other Employer Benefits

When in leave status for military service, employees are to be viewed as though they are continuously employed for purposes of seniority and pension benefits.²⁹ In addition, employees exercising their rights under USERRA are entitled to the same benefits as those generally provided to other employees on unpaid leave.

USERRA and the Family Medical Leave Act

The Family Medical Leave Act (FMLA) provides for 12 workweeks of unpaid leave to address a serious health condition of an employee or a family member or to take time off to care for a newborn or adoptee. To be eligible, employees must have worked for the employer for a minimum of 12 months and at least 1,250 hours for that employer.³⁰ Questions regarding the right to use FMLA leave shortly after returning to the workforce from active duty have arisen in light of the requirements regarding employment for the employer preceding the request for FMLA leave. In a DOL Memorandum dated July 22, 2002, available on the DOL Web site at http://www.dol.gov/vets, the DOL advised that individuals reemployed following military duty are entitled to the rights and benefits they would have earned if they had remained in civilian employment. The time spent serving in the military is to be counted for FMLA purposes as if the employees never broke service.

NOTICE UNDER USERRA

USERRA requires employees to provide notice to their employers of their intent to take military leave, unless to do so is not feasible or precluded by military necessity.³¹ The employer may require written documentation regarding the military leave if it is for more than 30 days.³²

In 2004, Congress passed the Veterans Benefits Improvement Act (VBIA), which amended USERRA by adding a requirement that employers provide notice of the rights, privileges, and obligations of employees and employers under USERRA.³³ On March 10, 2005, the DOL published an interim final rule, setting forth language to be used by employers to comply with the notice requirement.³⁴Generally, the notice includes a description of the reemployment rights of those who voluntarily or involuntarily leave employment for military service, as well as the prohibition against discrimination on the basis of military service and the right to be free from retaliation for seeking enforcement of USERRA. The notice also contains a brief summary on the health benefits attendant to military deployment and a description of the enforcement mechanism.³⁵

ENFORCEMENT AND REMEDIES

The statute offers different avenues for an individual to pursue relief. Administrative recourse may be sought through VETS within the Department of Labor. VETS offers guidance on the interpretation and application of USERRA and will investigate complaints, although a complainant has the option of pursing administrative re-course.³⁶ A complainant also has the ability to request that the U.S. attorney general consider their complaint. If determined to be meritorious, the attorney general may pursue the case for the complainant. Individuals also have the right to pursue the matter in civil court themselves if they choose not to file with VETS or if the attorney general refuses to pursue the matter.

USERRA allows for the awarding of double dam-ages (double the amount of wages and back pay) if the employer’s actions in violating USERRA are “willful.” In addition to wage-related damages, the court also may grant attorney fees, expert witness fees, and other similar types of expenses.

CONCLUSION

Recognizing the significant role our citizen soldiers have in protecting this country, Congress has acted to provide job security in their civilian life so that they do not have to choose between serving their country and serving their community. While a civilian employer may face challenges upon the deployment of employees who serve in the reserves, Congress has favored protecting job security upon deployment while attempting to do so in a fair manner to the employer. When assessing the rights and obligations of reservists, employers also should be aware of state laws that may offer even more protections to reservists within that state.

Endnotes

¹ The Department of Labor recently indicated that over 460,000 members of the National Guard and Reserve have been mobilized since September 11, 2001. See 7 Fed. Reg. 46, pp. 12105-12109 (3/10/2005).

² 38 U.S.C. §§ 4301-4333.

³ 69 Fed. Reg., No. 181, pp. 5626556301 (to be codified at 20 C.F.R., Part 1002).

⁴ Id. at § 4301. USERRA replaced what was Congress’ original effort to offer some measure of protection. The original provision was passed in 1940 and was named the Selective Training and Service Act of 1940, codified at 50 U.S.C. 301, et seq. This was replaced by the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, codified at 38 U.S.C. §§ 2021-2027, often referred to as the Veterans’ Reemployment Rights Act.

⁵ 38 U.S.C. §§ 4301-4333. USERRA was enacted pursuant to the War Powers Clause of the Constitution. Art I, § 8. cl. 11. Many of the other federal statutes that address employment matters have their origins in Congress’ ability to regulate commerce among the states. In basing such actions on a presumption of nexus to interstate commerce, thresholds on the size of the workforce have been included within many such federal statutes.

⁶ 38 U.S.C. § 4303(3) and (4).

⁷ Brandsasse v. City of Suffolk, 72 F.Supp.2d 608 (E.D. Va. 1999) (City and director of personnel for the police department were subject to liability under USERRA as city paid the wages and controlled the hours. The director of personnel was responsible for employment actions).

⁸ 38 U.S.C. § 4303.

⁹ 278 F.3d 895 (9th Cir. 2002).

¹⁰ The reserves are composed of three organizational units, the Ready Reserve, the Standby Reserve, and the Retired Reserve. See 10 U.S.C. § 1014(a). The training and service commitments vary depending on the nature of the reserve unit an individual serves within.

¹¹ 10 U.S.C. § 10149(a). See Dow v. U.S., 192 F.3d 366 (2d Cir. 1999) (Ninety-six FBI agents sued, alleging that the FBI’s policy prohibiting agents from serving in the Ready Reserve violated their rights under USERRA. By statute, the President is vested with the authority to screen the Ready Reserve. The president delegated this authority to the secretary of defense, who issued regulations noting that certain positions within the federal service cannot be vacated during critical times without jeopardizing the nation’s security. The secretary of defense directed each federal agency head to identify “key positions” which are not to be filled by individuals in the Ready Reserve. For decades, the FBI director has determined that agents may not serve in the Ready Reserve. In reviewing this position, the Court determined that Congress did not intend for courts to interfere with determinations of this nature in the federal intelligence agencies.) For more information regarding the designation of certain federal employees as “key employees,” employers should refer to regulations published at 10 C.F.R. § 44.5(b).

¹² 38 U.S.C. § 4311 (a).

¹³ Id. at § 4311(b).

¹⁴ Id. at § 3411(c). See Fink v. City of New York, 129 F.Supp. 511, 520 (E.D.N.Y.) (motivating factor if the employer “... took into account, considered, or conditioned its decision on that consideration.”); Sheehan v. Department of Navy, 240 F.3d 1009 (Fed. Cir. 2001); Gummo v. Village of Depew, 75 F.3d 98 (2d Cir. 1996), cert. denied, 517 U.S. 1190 (1996) (Police officer/reservists’ claim allowed to go to jury after court determined that officer established his participation in military training was a motivating factor for his termination and sufficient evidence of animus toward reservists existed to overcome city’s claim that his termination was based on grounds unrelated to his absence for military training).

¹⁵ 38 U.S.C. § 4311(b). See Brandsasse v. City of Suffolk, 72 F.Supp.2d 608 (E.D.Va. 1999) (Police officer met burden necessary for case to continue against city for denying him an opportunity to take a promotional exam when he was ordered to participate in military training and retaliating against him for asserting rights protected under USERRA).

¹⁶ 38 U.S.C. § 4311 (c)(2).

¹⁷ USERRA was amended to create an exemption from reemployment for pre-service positions “brief and recurrent” and not likely to continue indefinitely. 38 U.S.C. § 412(de)(1)(C).

¹⁸ 38 U.S.C. § 4313(a)(1)(A) and (B).

¹⁹ Id. at § 4313(a)(4).

²⁰ Id. at § 4313(a)(2).

²¹ Id. at § 4313(a)(4).

²² Id. at § 4313(a).

²³ Id. at § 4312(c)(1) - (c)(4).

²⁴ Id. at § 4313(a)(3).

²⁵ Id.

²⁶ Id. at § 4312(e).

²⁷ Id.

²⁸ See Pub. L. No. 104-191 and 29 U.S.C. §§ 1181 et. seq. For more information on protections afforded reservists under HIPPA, refer to the DOL Web site at http://www.dol.gov, under “Frequently Asked Questions for Reservists Being Called to Active Duty.”

²⁹ Id. at § 4316(a).

³⁰ The FMLA is codified at 29 U.S.C. § 2601 et. seq. The DOL issued implementing regulations located at 29 C.F.R. § 825.100 et. seq.

³¹ 38 U.S.C. § 4312(a)(1) and (b).

³² 38 U.S.C. § 4312(f).

³³ Pub. Law No. 108-454 (Dec 10, 2004). The notice requirement will be codified at 38 U.S.C. § 4224. The VBIA required the secretary of labor to make the text of the notice available by March 10, 2005.

³⁴ FR. Doc. 05-4871, p. 12108. to be published at 20 C.F.R., Appendix to Part 1002, titled “Your Rights Under USERRA.”

³⁵ Id.

³⁶ 38 U.S.C. §§ 4321- 4322.

The Bulletin Honors

The Paso Robles, California, Police Department presents “Reward for Valor,” which includes an 8-foot-tall bronze statue depicting a firefighter and a police officer rescuing a small child. Behind it stands a brick wall with the etched names of public safety servants who have lost their lives in the line of duty in San Luis Obispo County since its incorporation in 1850. Dedicated on the same day as the Paso Robles Public Safety Center, where it sits near the entrance, the monument was privately funded by individuals and businesses throughout the county.

The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face each challenge freely and unselfishly while answering the call to duty. In certain instances, their actions warrant special attention from their respective departments. The Bulletin also wants to recognize those situations that transcend the normal rigors of the law enforcement profession.

Officer Johnson

While working special duty at a car show and swap meet, Officer Daniel Johnson of the Jefferson, Wisconsin, Police Department saw a person collapse near the front gate. When he got to the individual, Officer Johnson found no pulse or signs of respiration. Immediately, he checked the victim’s airway and began rescue breathing. With the assistance of another citizen, Officer Johnson continued to perform CPR until the arrival of rescue personnel, who used a defibrillator to revive the individual. The victim then received hospital treatment and ultimately survived. The quick and decisive actions of Officer Johnson saved the person’s life.

 

Officer Larsh

Officer Mast

Officers Jeff Larsh and Joel Mast of the Forest Park, Ohio, Police Department responded to a call pertaining to an attempted suicide at a residence. Upon arrival, they found the house locked. No one answered the door and the officers could not make contact with anyone inside. After receiving authorization, Officers Larsh and Mast kicked in the front door and entered the residence. Once inside, the officers noticed the smell of exhaust fumes. Officer Mast located a 4-month-old baby lying on a couch with a suicide note nearby that was written by the mother. Officer Larsh found the woman in her car in the garage with the doors closed and the motor running. The officers turned off the engine and the opened the doors. Officer Larsh moved the mother to the front yard and Officer Mast brought the child outside. The officers got medical help for the two victims and also made arrangements for the baby and mother’s other three children, who had not yet arrived home from school. The quick, decisive actions of Officers Larsh and Mast saved two lives and prevented a horrible tragedy.

Nominations for the Bulletin Notes should be based on either the rescue of one or more citizens or arrest(s) made at unusual risk to an officer’s safety. Submissions should include a short write-up (maximum of 250 words), a separate photograph of each nominee, and a letter from the department’s ranking officer endorsing the nomination. Submissions should be sent to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.

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Patch Call

The town of New Castle, New York, was
founded by the Quakers in 1790. The overall shape
of its police department’s patch is modeled after an
arrowhead. At the center is a scene depicting a
Quaker and a Native American with the Hudson
River in the background.

 

The patch of the Fort Kent, Maine, Police Department
depicts a brown fort situated at the corners
of the St. John and Fish Rivers with Clair,
New Brunswick, Canada, in the background. The
fort was established in 1839 for monitoring lumbering
activities on both rivers to keep out foreign
trespassers. In 1842, the St. John River became the
international border.

 

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