A Montgomery County police sergeant is suing the county for refusing to place him on military leave while he was serving on active duty in the U.S. Army Reserve’s Judge Advocate General school.
In a lawsuit filed in U.S. District Court in Greenbelt this week, Jae S. Hwang claims his seniority, pay, benefits and retirement benefits all suffered because the county did not place him on active-duty status while he was training, and that the county’s actions violated the federal Uniformed Services Employment and Reemployment Rights Act (USERRA).
“It’s important to understand this [lawsuit] was the last resort,” said Hwang’s attorney, John Ki, a Rockville solo practitioner. “Hwang was trying through informal channels to resolve this matter.”
The county had not yet received the complaint, but a spokeswoman said it had been working toward finding a solution.
“Apparently it’s not a cut-and-dried issue,” said the spokeswoman, Lucille Baur. “It is being evaluated by a lot of different people to make sure the right action is taken. We hope to find a good, fair resolution.”
USERRA applies to public as well as private employers, said Joseph M. Owens, who practices military law at The Law Office of Joseph M. Owens in Baltimore but is not involved in Hwang’s litigation.
If Hwang’s allegations are true, “that’s illegal,” said Owens. “[The county] cannot do that. You accrue seniority and benefits in accordance with your peer group. It appears they made an [human resources] error when they placed him on leave. They can just go back and fix it. The government should follow the law.”
Taking away a military member’s seniority would qualify as a deprivation of a benefit under USERRA, said Adam Augustine Carter with The Employment Law Group P.C. in Washington, D.C., who represents other clients in USERRA cases.
“In this case, while he was away, he should also be accruing those service days and he shouldn’t have the escalator moving backwards when it’s moving forward for other people,” Carter said.
Under USERRA, employers cannot take any negative or adverse action against an employee who is serving on active duty, Carter said. The employer must retain the service member’s job or an equivalent position — one with the same benefits, pay, opportunity for benefits and right to accrue vacation.
“It’s a crime for a member of the military not to follow orders,” Carter said. “This statute stands as a bulwark against employers who [would tell] military men and women that their job has to come first. No! Military service comes first.”
When a service member gives his employer proper notice and returns with an honorable discharge, there should be no problem, Owens said.
“Montgomery County made an error and they simply need to fix it,” Owens said.
Hwang, a naturalized citizen who moved to the United States from South Korea when he was a child, started working at the police department in July 2003.
While working as a police officer, Hwang also attended the University of Baltimore School of Law, graduating and passing the Maryland bar exam in 2009.
In July 2012, Hwang was commissioned as an officer in the Judge Advocate General’s Corps for the United States Army Reserve, according to the lawsuit. He then received active duty orders to attend mandatory JAG school and infantry school from Feb. 9, 2013 to June 17, 2013.
For the time he would be gone, Hwang requested 15 days paid leave and the remainder of the time as non-paid military leave. The county’s Office of Human Resources and the Montgomery County Police Department’s payroll and personnel department, however, placed Hwang on leave without pay.
When Hwang was informed he was not placed on military leave, he wrote to the HR office while serving on active duty, but the department refused to change the status, according to the lawsuit.
“This was months and months in the making,” Ki said. “We tried every possible way to resolve this informally.”
Hwang’s direct supervisors then tried to convince the HR office to place him on unpaid military leave, but they were also “ignored and rebuffed,” the complaint says.
“The department itself was very supportive,” Ki said. “His supervisors congratulated him, thanked him for his service to his country. It’s the payroll and human resources department that came in and caused all sorts of problems.”
As a result, Hwang claims, his increment date for seniority was pushed back almost six days. Hwang claims he also had to use some of his personal leave time to prevent the date from being pushed back even more.
The county also took back more than $250 from a raise Hwang had received while on active duty, claiming he was not entitled to it since his increment date had changed. The county retroactively deducted health and dental benefit payments for the period he was on active duty out of his future paychecks.
To avoid pushing his seniority back further, Hwang returned 10 days earlier than planned and submitted his active duty discharge papers to the county.
In his lawsuit, Hwang asked the court to order Montgomery County to restore his service date for seniority as if he had not left, pay back any deductions from his wages and restore his personal leave.