Employment and the National Guard
Sep 17, 2018 03:45PM
By Sean McCarthy
However, for the approximate 4,500 members of the Nebraska National Guard, this reality comes with its own dilemma: How can you be two places at once when your National Guard duty calls?
The answer is simple: you cannot. One weekend a month and two weeks a year, service members are required to attend training (or “drill”) at the National Guard. Most employers are familiar with the “one weekend a month, two weeks a year” obligation. But that obligation is due to increase. In February, the military announced their Army Guard 4.0 initiative, which focuses on readiness for fast deployment. The new model calls for an increase in the number of days spent in training, up to 60 days per year, starting with armored and Stryker brigade combat teams. This change in training philosophy will eventually affect many, if not all, units.
Additionally, National Guard members have their own responsibilities to their employers. They must give their employer written or verbal notification before their deployment. The time requirements for this can vary, as deployments are sometimes sudden. When a member returns from deployment, they must alert their employer of their intention to return to their job. If a deployment is between 31 to 180 days, National Guard members are given 14 days to reapply for their job after they return home. If their deployment is greater than 180 days, they are given 90 days to reapply for their job.
And those who serve in the National Guard need outside jobs. The official National Guard website calculates that the highest ranking officer, with 20 years of service, can make $15,736.84 annually. The lowest ranking enlistee, with one year of service, can make $3,385.82 annually.
By law, employers have to accommodate their employees who serve in the National Guard. The Uniformed Services Employment and Reemployment Rights Act (USERRA), which was signed into law in 1994, states that employers must allow National Guard members to serve their duty, and must not force them to resign from the National Guard. They cannot ask a Guard member to use their vacation time for a training session. Additionally, public employers must pay military differential pay. Private employers are not required to pay this. If a member is deployed, the employer must retain that person’s job when they return from their deployment. If they cannot give their job back to an employee, they must find a job that is similar to the one he or she left when they were called to duty.
Many employers are familiar with the USERRA law, and comply. However, there are some exceptions. The Employer Support of the Guard and Reserve (ESGR) reported that four cases in Nebraska were filed by Nebraska National Guard service members in the 2018 fiscal year. The four cases involved concerns over “military obligation discrimination.”
These days, many companies produce long-range team projects as opposed to daily production work. The idea that someone might leave at a moment’s notice may make a team lead hesitate to put someone serving in the National Guard in charge of a project. But rest assured, help is available if this situation arises. A good source for employees in this instance is a staffing agency.
“What normally happens is we get a call for a project manager or something,” says Jim Taylor, franchise owner of Snelling Staffing in Omaha. “We’ll know if it’s a short term or not. It very well could be the reason why there’s an opening is that the person is overseas, but we don’t specifically ask why.”
Taylor’s employees at the staffing agency receive the request, find prospective employees from among their clients, and fill the request.
William Harris is a lawyer at Berry Law Firm. He also acts as defense counsel for National Guard members. Harris has been in the military for almost 20 years, serving four years of active duty in the Air Force, and 15 years as a National Guard member. Even with a lofty legal title, Harris isn’t immune to the “one weekend a month, two weeks a year” requirement. Harris says his biggest challenge is juggling the demands of both jobs.
“Even though we’re part-time soldiers, there’s certain rules and regulations you still have to abide by,” Harris says.
In addition to his civilian lawyer title, Harris is also a Justice Advocate General (JAG) officer. National Guard members can consult their local JAG officers on legal issues, free of charge. In his 15 years with the National Guard, Harris says he’s only had to handle about three employment-related complaints. None of the complaints involved the loss of a job or denied promotion. Instead, the issues were mainly questions employers had about USERRA law. Harris says most of the protections within USERRA are known to employers.
“It’s pretty user-friendly if you read it,” Harris says.
This means the temporary employee hired to help for six months will most likely be moving on afterwards. That doesn’t necessarily mean a temporary employee will not be a great employee.
“I’ve owned this franchise for seven or eight years, and I was under the impression that a small percentage of people would want to do temporary assignments,” Taylor says. “That’s not true. There’s a whole range of people wanting to do temp work, for a variety of reasons: It’s good exposure. Some people get bored early, so they want a different adventure every six months. We have some clients that have been in the temp world for 10 years.”
There are instances when a temp employee may be a better worker than the full-time employee, but the employer cannot simply pass over the National Guard member once they return.
However, while USERRA protects National Guard members by ensuring their civilian job will be available to them when they return, it doesn’t entirely guarantee their job. If a company undergoes a restructuring where certain positions are eliminated, or a job is lost to automation, companies are still in their legal right to eliminate positions that may have National Guard members as employees.
“If that type of job goes away, they can’t be forced to put them in a job that no longer exists,” Harris says.
Visit ne.ng.mil for more information on the Nebraska National Guard.
This article was printed in the October/November 2018 edition of B2B. To receive the magazine, click here to subscribe.