Members of the National Guard who work outside of the state where they mobilize may not have employment protections during a state-sponsored activation.
Many states are strengthening their statutes to protect the re-employment rights of members of their National Guard. Two-thirds of all states in their respective statute currently provide an effective enforcement mechanism. However, only one-third of the states have a state law that includes the seven key words — this state or of any other state — or language sufficient to provide enforceable re-employment rights. This provision will provide protection to a member of the National Guard of another state who holds a civilian job in the state with the desired provision.
Key message
State statutes that cover National Guard members during state-sponsored mobilizations impact employers within the state. States can modify their statutes to strengthen enforcement mechanisms for members of the National Guard returning to jobs in their affiliated state and protect the employment rights of members of the National Guard employed outside of their affiliated state at the time of state-sponsored activations.
Discussion points
The Uniformed Services Employment and Reemployment Rights Act1 does not apply when National Guard members are activated by their governor for active duty to respond to state emergencies such as fires, hurricanes, tornadoes, floods, etc.
Every state has a statute that protects civilian jobs for National Guard members on state active duty; however, variations of the statutes exist.
- Several states have weak enforcement mechanisms that do not provide members an adequate private right of action in the event a member believes the employer has denied his or her right for re-employment.
- The majority of states have laws only protecting the employment of members of the National Guard assigned to that specific state. Many National Guard members have civilian jobs in states other than the state of their National Guard membership. Unless state law covers the person who works in that state but is assigned to another state's National Guard, he or she has no re-employment rights after completing state active duty.
States can adopt legislation to strengthen their state USERRA statute by providing protections that include these substantive points:
- Effective enforcement mechanism through private right of action for members of the National Guard
- Employment protection to members of the National Guard of another state by revising wording in existing statute to recognize "members of the National Guard of this state or any other state"
1 USERRA is a federal statute that covers the right to re-employment of a person who leaves a civilian job (federal, state, local or private sector) for voluntary or involuntary service in the uniformed services. The USERRA protects the civilian jobs of National Guard members after military training or service under Title 10 or Title 32 of the U.S. Code when the president of the United States activates them.
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