Guard, Reserve Employment Rights
National Guard and Reserve service used to require relatively little time away from the member's regular job. That type of a commitment was a relatively minor consideration for most employees and employers. Times have changed.
The turning point came during 1990-1991, when more than 250,000 reservists served on active duty in the Persian Gulf for an average of six months. Since then, Guard and Reserve members called to serve in operations such as Bosnia often have been serving for many months before returning to their regular jobs. The reemployment rights guaranteed by the Uniformed Services Employment and Reemployment Rights Act have become more important to them than ever.
The National Committee for Employer Support of the Guard and Reserve (ESGR), an arm of the Defense Department, provides information to both employees and employers about rights under the law. The ESGR also provides informal mediation services when problems arise.
"The old days of two weeks during the summer and a weekend a month, for most units, are a thing of the past," says Lt. Cmdr. Mark Shelley, ESGR Deputy, Ombudsman Directorate. "You're looking more like three, four, maybe five weeks-one of our refueling wings is averaging 110 days a year. The numbers are way up there."
Conflicts can arise when the employee is either called to duty or volunteers it while the employer needs to get work done and is inconvenienced by the employee's absence. Problems are common in occupations such as law enforcement, firefighting, health care, teaching, aviation and others that are highly schedule-driven.
The law protects Guard and Reserve members against adverse employment actions that are in part motivated by the employee's military service. It doesn't matter whether the service was voluntary or involuntary, although a five-year cumulative limit applies to the amount of voluntary military leave an employee can use and still retain reemployment rights.
To be protected, a National Guard or Reserve member must provide timely notification of military duty to the employer, and must report back to work for reemployment in a timely manner. Reemployment rights are provided if the civilian job is permanent or temporary, unless the employment was for a brief period with no reasonable expectation of continuance for a significant period of time.
On return from active duty, an employee's job restoration rights depend on the length of the service.
The federal law does not apply to state military duty or call-ups of National Guard members by governors. But most state laws provide similar protections.
ESGR's Shelley says misconceptions and ignorance about military service remain problems.
"Employers seem to understand what happens if the person is six months, nine months in Bosnia. They realize the person will be gone, they have questions about reinstating the individual, but they seem to understand that," he says. "A lot of the problems are where people are going to two-week, three-week, four-week stints. The employer doesn't seem to understand that all orders are valid even if they're voluntary in nature."
For employees, especially those returning from long periods of active duty, issues often involve getting the same job status-being on the same shift at the same location, and otherwise being treated as if they had continued to work. If someone was brought in as a substitute to get the work done in the employee's absence, the returning employee has seniority.
Editor's note: This article by Eric Yoder, was aquired by washingtonpost.com on February 10, 2003.