CIVILIAN EMPLOYMENT RIGHTS

The success of the Nation's defense depends on the availability of highly trained National Guard and Reserve members as part of the "Total Force." Through its National Committee for Employer Support of the Guard and Reserve (NCESGR), the Department of Defense has worked hard to obtain and sustain employer and community support for National Guard members and Reservists who periodically are absent from their civilian jobs to perform military duty.

On October 13,1994, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA; 38 USC, Chapter 43) was signed into law. While this law amounts to a sweeping revision of the Veterans' Reemployment Rights (VRR) law, it retains the basic protections that were contained in the VRR. During its 54-year history, the old VRR law became an often-confusing patchwork of statutory amendments and court decisions. USERRA eliminates much of the confusion by simplifying and clarifying the rights and responsibilities of Guard and Reserve component members as well as their civilian employers.

No law, policy, practice, etc. that would diminish such rights takes precedence over the provisions of USERRA. Conversely, USERRA does not supersede, nullify, or diminish any federal or state law, or company policy, union agreement, practice or contract that provides greater rights or benefits to service members.

USERRA applies to all employers in the United States, regardless of the size of their business. In addition to protecting permanent employees, USERRA also protects employees whose positions are labeled "temporary" unless the employment is for a brief, non-recurring period and is not expected to last indefinitely or for a significant period. USERRA does not protect independent contractors and others considered to be self-employed.

USERRA prohibits discrimination in hiring, retention, promotions, or other benefits of employment against a person because that person is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service. In addition, employers are prohibited from reprisal against anyone who exercises USERRA rights or anyone who assists in the exercise of those rights by testifying or otherwise participating in an investigation, even if that person has no military connection.

In order to qualify for reemployment rights following military service, you must meet the following five eligibility criteria:

-  You must have left a civilian job.

-  You must have given notice that you were leaving to perform military service.

-  The cumulative period of service must not have exceeded five years.

-  You must be released from service under honorable or general conditions.

-  You must have reported back to work or applied for reemployment within time constraints prescribed by law.

AVOIDING JOB CONFLICTS

Most employment conflicts can be avoided by being candid with your employer about your obligations as a member of the National Guard and by not taking your employer's support for granted. Keep your boss informed about what you do in the military and w hen you do it. Let your boss know the vital mission that is supported by your participation in the National Guard and how your military experience and training will make you a more capable civilian employee. Here is a summary of NCESGR's advice on how to keep the boss on your side:

TALK TO YOUR BOSS: No matter what your military assignment or specialty, tell your employer about it. Many people hold down military jobs that relate directly to their civilian careers. If yours is one of them, your boss would be pleased to know that you are learning and practicing military skills that can pay off on the job. Even if what you do in the military is different from your civilian job, sharing the details can impress your boss. You are using your spare time to participate in a second career that is of great importance to your community and the nation. That is a strong indication to people at work that you are the type of person who seeks out - and can handle - serious responsibility.

FEDERAL LAW: Experience has shown that members of the National Guard and Reserve, as well as their employers, do not always have a clear understanding about employment and reemployment rights for Reserve Component members. Federal law guarantees the right to take time off from work to attend to your military responsibilities. The more that you, your boss and your personnel office know about the federal laws and legal precedents that spell out Reserve reemployment rights, rules and obligations protected by the laws, the less chance there is for misunderstanding.

DRILL SCHEDULES: Don't make your boss guess about your Guard duties. The more you share with your boss - and the earlier you share it - about drill schedules, annual training plans, reemployment rights and rules, and any extra time-off requirements, the easier things will go. Remember, you must give your employer advance notice of any military service, including drills. Let your boss know as early as possible when you will be absent from work. When schedule changes occur, notify your employer as soon as you know about them.

EXTRA TRAINING: When you or the unit needs additional training, or if you are scheduled to attend a service school, let your boss know about it. Giving your employer the maximum lead-time will allow him or her to make plans to allow for your absence. To the extent that you have control over the scheduling of additional training, try to minimize any adverse impact your absence from your civilian job will cause. Show consideration for your boss and your co-workers when you volunteer for nonessential training.

NON-TRAINING ACTIVE DUTY: Many Reserve Component members perform tours of active duty that are not for training. This can range from short active duty tours to support exercises or work on special projects, to years of active duty in the Active Guard Reserve (AGR) or similar programs. Again, under USERRA, prior notice of this type of duty must be given to your employer. Remember too, that most duty of this type is subject to a cumulative five-year time limit after which you no longer have reemployment rights under USERRA with a given employer.

EMERGENCY CONTINGENCY DUTY: Many Reserve Component members have served on active duty in support of such operations as the Persian Gulf conflict or in the Balkans. In any case, when you have been activated involuntarily for a particular mission, your period of service will not count against the cumulative five-year limit established under USERRA. In most cases, voluntary duty will also be exempt from the five-year limit if it is in direct support of a contingency operation.

SCHEDULING: If you miss work because you perform military service, your employer is not obligated to reschedule you to make up the time lost. However, if employees who miss work for nonmilitary reasons are afforded opportunities to make up the time lost, you must be treated in the same manner. Further, you cannot be required to find a replacement worker for the shift(s) you will miss as a condition of being given the time off by your employer to perform military service.

VACATION: Federal law allows you the option to use earned vacation while performing military service, but you cannot be required to do so. The only case where you could be required to use your vacation would be if your company has a planned shutdown period when everyone must take vacation, and your military service coincides with that period of time.

VACATION ACCRUAL: Your employer is not required to provide for vacation accrual while you are absent from work performing military service, unless accrual is permitted for employees on nonmilitary leave of absence of similar length.

PAY: Although some private and many government employers provide full or partial civilian pay to employees absent on military duties - usually for a limited period of time -the law requires only an unpaid leave of absence.

FEDERAL EMPLOYEE PAID MILITARY LEAVE: Most non-temporary employees of the federal government, including the U.S. Postal Service (USPS), who are members of the Reserve Components, accrue up to 15 days of paid military leave per year. Employees (excluding USPS) who have unused paid military leave at the end of a year may carry up to 15 days into the next year. Only USPS workers may use paid military leave for inactive duty training (drills) - the balance of federal employees must be in an active duty status to qualify for paid leave.

STUDENT GUARD MEMBERS AND RESERVISTS: Currently, federal law does not afford activated members who are enrolled in schools, colleges and universities similar rights. Student members of the Guard and Reserve are not guaranteed refunds of tuition and fees paid for the term they cannot complete. There are no provisions for partial course credit, or the right to return to the college or university upon completion of active service.

REWARD YOUR BOSS FOR SUPPORTING YOUR SERVICE: The Department of Defense will send your boss - through your unit commander - a personally prepared certificate of appreciation if you just apply for it. The certificate comes mounted in a handsome folder, bearing the DoD seal embossed in gold. Take time to do your best to "brag" about your boss. The stronger your boss's support, the greater the likelihood that he or she will also receive a higher award. The state employer support committee presents plaques to the state's six most supportive employers each year. The National Committee presents the prestigious PRO PATRIA award to each state's most supportive employer each year. The Secretary of Defense presents the highest awards, the National Employer Freedom Award, to the five most outstanding employers for the year (four regional winners; one national). Applications can be obtained from the unit ESGR representative, any member of the state ESGR committee, or the NCESGR website.

WASHINGTON STATE LAWS

The following sections of the Revised Code of Washington (RCW) explain an employer's responsibilities (Title 38 of the RCW covers 'Militia and Military Affairs'):

INTERFERENCE WITH EMPLOYMENT (RCW 38.40.040): A person, who either alone, or with another, willfully deprives a member of the organized militia of Washington of his or her employment or prevents such member being employed, or obstructs or annoys said member or his or her employer in their trade, business or employment, because he or she is such member, or dissuades any person from enlisting in said organized militia by threat or injury to him or her in their employment, trade or business, in case he or she shall so enlist, shall be guilty of a gross misdemeanor and on conviction thereof shall be fined in a sum not exceeding five hundred dollars, or imprisonment in the county jail not more than six months or by both fine and imprisonment.

DISCHARGE FROM EMPLOYMENT (RCW 38.40.050): No member of the organized militia of Washington shall be discharged by his or her employer by reason of the performance of any military duties upon which he or she may be ordered. When any member of the organized militia of Washington is ordered upon active state service or inactive duty which takes the member from his or her employment the member may apply upon the termination of such duty to be restored to his or her position and employment, and if the tour of duty which shall have continued for a period not longer than three months, any employer or the officer or manager of any firm or corporation having authority to reemploy such member and failing to do so shall be guilty of a gross misdemeanor, and on conviction thereof shall be fined in any sum not exceeding five hundred dollars, or imprisonment in the county jail for a period not exceeding six months, or by both such fine and imprisonment.