How much time do you have to provide your employee before and after military service?

As mentioned in my previous post, I recently had the honor of presenting USERRA briefings to servicemembers from the local Reserve units of the Marines, Navy and Air Force. Another issue that was of concern to these servicemembers was their employers’ demands regarding their availability for work shifts immediately prior to or after their uniformed service. Given the fact that some of these units have members scattered over a multi-state area, who require hours of travel time to reach their duty stations, this may have a direct impact on whether they arrive fit to perform their duties, whether for the military or their civilian employer.

Servicemember’s Obligation to Report for Work Following Uniformed Service

Where the uniformed service is 30 days or less, USERRA’s requirements are clear as to a servicemember’s obligation to report back to work after their military service. This is often an issue since monthly drills and annual training requirements are typically of short duration. USERRA requires that a servicemember whose uniformed service is 30 days or less must report back to work “not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence.” 38 U.S.C. § 4312(e)(1)(A)(i).

To ensure compliance with this provision, an employer should be aware of where the employee is performing his military service and, specifically, when and where he/she will be released from orders prior to the next scheduled shift. A simple calculation of the driving time from that duty station to the employee’s home, plus eight hours of rest time, will determine the time the employee is available for that next regularly scheduled shift. However, employers should be mindful of the fact that

1. if that time falls within the regularly scheduled full shift, the employer cannot compel the servicemember to report to work to perform a partial shift;
2. if the servicemember is released from orders during that calendar day, he/she cannot be compelled to report for duty on that day, regardless of whether travel time and eight hours of rest would otherwise permit it; and
3. the employer should not adjust times of shifts to avoid the implications of this Rule, since it would no longer be a “regularly scheduled” work period.

Employer’s Obligation to Release Employee from Work Before Uniformed Service

Servicemembers may also have issues where the employer insists that they report to work for a shift immediately prior to military service. Although USERRA and its Rules do not provide a fixed timeline, such as that for reporting to work after the military service, it does provide some guidance.

The Rule recognizes that for extended deployments substantial pre-service time off from work may be necessary to arrange his/her affairs prior to service. The issue arises most often, however, for short periods of uniformed service such as weekend drills and annual training. The Rules require that “[a]t a minimum, an employee must have enough time after leaving the employment position to travel safely to the uniformed service site and arrive fit to perform the service.” 20 CFR § 1002.74. The Rules provide an example where the employer forces a servicemember to work an overnight shift immediately before the military service, forcing the servicemember to travel directly from work to his duty station. Since the servicemember could not arrive fit for duty under those circumstances, the employer’s demands were in fact a USERRA violation. Arguably, sufficient “rest” under this section would require eight hours of rest, plus travel time, prior to the military service—similar to that provided on the back end of the military service.

ESGR Can Provide Assistance

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) covers almost all civilian employers, and governs their rights and responsibilities when employing servicemembers. If you have questions regarding this, or any other, issue covered by USERRA, the Department of Defense’s Employer Support of the Guard and Reserve Program (“ESGR”) provides assistance, guidance, and resources for servicemembers and their civilian employers.