What protections do I have under USERRA?

2017-02-13T05:51:41-05:00

My work shift is from 2200 - 0600 , Tues - Sun. I work Nearly 30 mins with traffic from my home and from home to my duty station is 1 hr and 21 mins - 1 hr and 50 mins. My question is am I and how am I protected under USERRA if I won't get home til 0630, get ready for drill and make it there around 0730 or close to formation which is 0800 all while having lack of sleep?

Response by CW3 Dylan E. Raymond, PHR made Feb 13 at 2017 5:54 AM

2017-02-13T05:54:04-05:00

You should be able to get the night off prior to going to drill

Response by SPC Private RallyPoint Member made Feb 13 at 2017 5:56 AM

2017-02-13T05:56:10-05:00

Here in Oklahoma, I'm not sure how things will translate over to you, but here, I let them know when I get my drill schedule for the year. They give me the day prior to drill off to allow for sleep and etc, as well as drill it self. Just tell your employer that you would like the day before drill off. I had an employer that had issues with it, but I told his boss and it was straightened out. You should be able to do the same.

Response by MSgt Private RallyPoint Member made Feb 13 at 2017 5:59 AM

2017-02-13T05:59:49-05:00

https://www.dol.gov/vets/programs/userra/

U.S. Department of Labor -- Veterans' Employment and Training Service (VETS) -- Uniformed...

VETS provides assistance to those persons experiencing service connected problems with their civilian employment and provides information about USERRA to employers. VETS also assists veterans who have questions regarding Veterans' Preference.

Response by SPC Private RallyPoint Member made Feb 13 at 2017 6:14 AM

2017-02-13T06:14:23-05:00

I know I should be off the night prior to drill. However, my paydate fall on fridays and my job got a rule where if you don't show up to work the day of payday or that next if you're scheduled, you get pointed 3 points instead of 1. They were giving me the side eye when I told them about not being scheduled that day or getting off early.

Response by CAPT Kevin B. made Feb 13 at 2017 11:06 AM

2017-02-13T11:06:48-05:00

Oklahoma is a third world country in many ways. That extends to employers doing things just to do things including weird pay requirements. If you look through USERRA, it really deals with you going away and what rights you have when you return. It is not intended to be a work scheduling conflict resolver, especially since you appear to be doing overtime. Bottom line, I'd get a senior officer to have a polite chat with the company to see if they can loosen up a bit. You're also showing up for duty not properly rested which makes you a safety hazard.

The other thing is to the extent USERRA may apply, getting DoJ to lean in on it is a very different story. Up to that point, all the MIL side can do is appeal to the good nature of an employer. MIL has no authority to impose anything. DoJ doesn't get interested in most stuff as the "value" isn't worth it to them. I had an officer fired from his architect job with the termination letter stating the reason was he's a reservist and was recalled. DoJ wouldn't bite because it wasn't worth the $2M+ minimum threshold at the time. DoJ just said, he's a professional and will find other work sooner than they'd get around to it. This is why a law is only as good as its enforcement.

Good luck on the resolution. Probably the only "leverage" would relate to whether or not the company runs 7 days a week. Then presumably, it's a matter of work scheduling to accommodate your Guard status. If the weekend is their heavy days, then it gets murkier.

Response by LTC Private RallyPoint Member made Feb 14 at 2017 1:01 PM

2017-02-14T13:01:44-05:00

Your employer is required to schedule you so that you can get 8 hours rest prior to and after Drill. Your state's ESGR Rep should be able to give you the details of the legal coverage, and can also advocate for you with your employer. A lot of employers just do not know what their legal obligations are concerning the Guard/Reserve.

Response by SSG Matthew N. made Feb 14 at 2017 2:14 PM

2017-02-14T14:14:25-05:00

USERRA is federal law so any state law pertaining to your situation is null. Also, your employer CANNOT force you to use any personal time, sick days, etc nor subject you to face penalties (a point system) for missing days for military service.
Refer to the following below:
*1002.74 regarding a leave of absence
*1002.85-1002.87 regarding notification (addresses permission not required)
* [login to see] .153 regarding a period of service (also addresses use of vacation time)

Reference: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=b3380ad7c0fc4d8b54acc41fba3840b0&rgn=div5&view=text&node=20:4.0.5.3.2&idno=20

eCFR — Code of Federal Regulations

us government publishing office

Response by LtCol William Bentley made Feb 15 at 2017 2:18 PM

2017-02-15T14:18:17-05:00

A very complicated question, actually, to get a very complicated answer!

In the interests of answering the question, and also the questions you HAVEN'T asked that are relevant, I include this rather long-winded (forewarned!) essay, in FIVE parts:

1. Introductory Matters.
2. First Part of Answer, for Release from Civilian Employer to Attend Military Duty.
3. Second Part of Answer, for Release from Military Duty and Reemployment with Civilian Employer.
4. Third Part of Answer, for Tennessee Employment Law for Reserve/Guard.
5. Conclusion.

___________________________________________________________________________________
INTRODUCTORY MATTERS:
As other posters have said, your rights vis a vis the National Guard, and any reserve duty, flow from USERRA's many provisions, and because it is a Federal law, it trumps any State laws and employer policies to the contrary. USERRA also trumps collective bargaining agreements with unions...Again, Federal law, applies to all US employers, all US employees (with tiny exceptions having mostly to do with certain Federal Intelligence Community and Federal law enforcement officers...).

Here is an extract from 20 Code of Federal Regulations (CFR) Part 1002, Supplementary Information, Par. II:

"...In construing USERRA and these prior laws, courts have followed the Supreme Court's admonition that: This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. * * * And no practice of employers or agreements between
employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act."

Overview of USERRA, from Department of Labor VETS:

"The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was signed into law on October 13, 1994. USERRA clarifies and strengthens the Veterans' Reemployment Rights (VRR) Statute. The Act itself can be found in the United States Code at Chapter 43, Part III, Title 38.

The Department of Labor has issued regulations that clarify its position on the rights of returning service members to family and medical leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA). See 20 CFR Part 1002.210.

USERRA is intended to minimize the disadvantages to an individual that occur when that person needs to be absent from his or her civilian employment to serve in this country's uniformed services. USERRA makes major improvements in protecting service member rights and benefits by clarifying the law and improving enforcement mechanisms. It also provides employees with Department of Labor assistance in processing claims.

USERRA covers virtually every individual in the country who serves in or has served in the uniformed services and applies to all employers in the public and private sectors, including Federal employers. The law seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service. USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability." See: http://webapps.dol.gov/elaws/vets/userra/userra.asp

___________________________________________________________________________________
FIRST PART, for Release from Civilian Employer to Attend Military Duty

Since your question specifically addresses the problem of "when" to leave work early enough to be fit and rested to perform your military duties, I'm going to refer you to this source. This is a very specific Q&A that is very similar to your problem:

http://www.servicemembers-lawcenter.org/Law_Review_12112.html

The ROA Law Review has been writing articles to specifically address the intricacies of USERRA since at least the late 1990's...it is AWESOME information. Thousands of articles, most of them written by retired Navy Captain Wright, who was involved in writing the legislation in the first place, so he knows what the Congressional intent was, as well as the actual wording. Here is Law Review Article 12112:

"Law Review 12112
November 2012

I Need Time off from my Job to Travel to my Drill Weekend

By Captain Samuel F. Wright, JAGC, USN (Ret.)

1.1.1.7—USERRA applies to state and local governments

1.3.1.1—Left job for service and gave prior notice

1.3.2.7—Adequate rest before and after service

1.7—USERRA regulations

1.8—Relationship between USERRA and other laws/policies

Q: I am a First Lieutenant in the Air National Guard and a member of ROA and I work as a firefighter for a medium sized city. Like other firefighters, I work a 24-on and 48-off schedule. My 24-hour shift runs from 7:30 am to 7:30 am the next day, followed by two days off.

One weekend per month, I travel to my drill weekend at an Air National Guard base that is a four-hour drive from the city where I live and work. I normally drive down on Friday afternoon or early Friday evening and check in to the “contract berthing” hotel. That gives me a good night’s sleep Friday night, and I arrive at the drill site prior to 7:30 in a rested condition.

Three or four times per year, I am scheduled to work at my firefighter job from 7:30 am Friday to 7:30 am Saturday on my Air National Guard drill weekend. Obviously, this does not work. If I leave my civilian job at 7:30 am on Saturday, it will be 11:30 am by the time I arrive at the Air National Guard drill site—that means that I miss about 25% of the schedule drill weekend. Moreover, I am exhausted, meaning that I cannot perform my military duties safely and effectively.

I have told the fire chief that when I am scheduled to work on Friday before my drill weekend I need to check out and depart by 6 pm Friday, so that I can drive four hours to the drill site, check in at the hotel, and get a reasonable night’s sleep and arrive at the drill site by 7:30 am Saturday in a “fit for duty” condition.

The fire chief has adamantly refused to make any accommodation for me. He said that the fire department is required to give me time off for military duty only when there is a direct conflict between my military duty and my fire department employment. He said that there is no direct conflict here—my fire department shift ends at 7:30 am Saturday and my drill weekend starts at 7:30 am Saturday. He said that the travel time and rest time is my problem, not the fire department’s problem.

What does the Uniformed Services Employment and Reemployment Rights Act (USERRA) provide concerning this sort of situation?

A: Congress enacted USERRA in 1994, as a long-overdue rewrite of the Veterans’ Reemployment Rights Act, which goes back to 1940. USERRA is codified in title 38, United States Code, sections 4301-4335 (38 U.S.C. 4301-4335).

Section 4331(a) of USERRA [38 U.S.C. 4331(a)] gives the Secretary of Labor the authority to promulgate regulations about the application of USERRA to state and local governments and private employers. In September 2004, the Secretary published proposed USERRA regulations in the Federal Register. After considering the comments received and making a few adjustments, the Secretary published the final USERRA regulations in December 2005. The regulations are published in the Code of Federal Regulations (C.F.R.) in Title 20, Part 1002.

One section of the DOL USERRA Regulations addresses your issue squarely:

Must the employee begin service in the uniformed services immediately after leaving his or her employment position in order to have USERRA reemployment rights?
No. At 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. Depending on the specific circumstances, including the duration of service, the amount of notice received, and the location of the service, additional time to rest, or to arrange affairs and report to duty, may be necessitated by reason of service in the uniformed services. The following examples help to explain the issue of the period of time between leaving civilian employment and beginning of service in the uniformed services:
(a) If the employee performs a full overnight shift for the civilian employer and travels directly from the work site to perform a full day of uniformed service, the employee would not be considered fit to perform the uniformed service. An absence from that work shift is necessitated so that the employee can report for uniformed service fit for duty.
(b) If the employee is ordered to perform an extended period of service in the uniformed services, he or she may require a reasonable period of time off from the civilian job to put his or her personal affairs in order, before beginning the service. Taking such time off is also necessitated by the uniformed service.
(c) If the employee leaves a position of employment in order to enlist or otherwise perform service in the uniformed services and, through no fault of his or her own, the beginning date of the service is delayed, this delay does not terminate any reemployment rights.

20 C.F.R. 1002.74 (emphasis supplied) (bold question in original).

I do not believe that USERRA gives you the right to leave your civilian job during a work shift. In these circumstances, when you are scheduled to work a 24-hour work shift in your civilian job starting at 7:30 am on the Friday before your drill weekend, you have the right to absent yourself from the entire work shift that starts at 7:30 am on Friday, with proper notice to the civilian employer, of course.

I suggest that you send a polite letter to the fire chief. Explain that you need either to miss the whole shift or to leave at 6 pm on Friday. Ask him which option is less stressful on the fire department. Try to avoid confrontation and controversy. Try to minimize the burden on the civilian employer, without detracting from your military performance and readiness.

I also suggest that you ask your Air National Guard commanding officer to send a polite letter to the fire chief, explaining that you need to miss the Friday shift or to leave prior to 6 pm Friday in order to be fit for duty Saturday morning. You should also contact Employer Support of the Guard and Reserve (ESGR), the Department of Defense organization that works with Reserve and Guard personnel and their civilian employers on matters of this kind. You can reach ESGR toll-free at [login to see] .

Good luck, and let me know how this turns out."

Now that we have addressed the front end problem, what is the USERRA rule on leaving work to go to military duty, let's answer the back end problem, as well, just to ensure it's clear, since this is complicated (and commonly abused by employers, unfortunately) stuff!

___________________________________________________________________________________
SECOND PART, for Release from Military Duty and Reemployment with Civilian Employer

From the DOL VETS website, the law on "reemployment," AKA "returning to work after military duty."

"The time limits for returning to work are as follows:

-- Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.
-- 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible
-- 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
-- Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing."

See: https://www.dol.gov/vets/programs/userra/aboutuserra.htm#knowyourrights

Notice this rule applies to the "back end" of your reserve/Guard duty, whether that is weekend drills or any period of active duty up to 30 consecutive days: you are, by law, NOT required NOR can your employer lawfully schedule you without your willing consent for any form of duty/work BEFORE you have had 8 hours of rest INSIDE your home. This means that no matter how long it takes you to get back to your home after your duty (up to 30 days of duty...), provided that the travel home is by the most direct and reasonable route and manner (i.e., no delays at a casino, girlfriend's house, over the hill and through the dale to Grandmother's house, no travel by donkey or on foot when a "reasonable" traveller uses another means, etc.), your civilian employer cannot schedule you for work before the 8 hours of rest.

How can your employer know the exact time they CAN put you back on the clock? Well, you will have to tell them, and they (for the most part) will have to take your word for it.

Your employer cannot require ANY proof, from you, of your actual performance of military duty (orders, etc.) unless you are gone on a military leave of absence for more than 30 consecutive days. Again, they have to take your word for it. Notice this means they cannot ask you for toll passes, receipts, orders, pay documents, even a note from your mother. Nothing for duty less than 30 days.

(Duty for 31+ days, then yes, they can lawfully ask (and you must provide) proof of your military service. They cannot dictate the exact form of that proof, however...if they ask for "orders" and you provide a DD-214, or a travel claim, or a pay document, anything that provides proof you did in fact perform military duty on the dates indicated, that is what they get. Now, you SHOULD give them what they ask for, because that is REASONABLE, but you can give them any document that proves your military duty.)

Here is what the Federal CFR 1002.123 says about the types of acceptable documentation AFTER 30 continuous days of military duty, when the servicemember returns to their civilian job and requests reemployment:

"Sec. 1002.123 What documents satisfy the requirement that the employee establish eligibility for reemployment after a period of service of more than thirty days?

(a) Documents that satisfy the requirements of USERRA include the following:
(1) DD (Department of Defense) 214 Certificate of Release or Discharge from Active Duty;
(2) Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service;
(3) Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority;
(4) Certificate of completion from military training school;
(5) Discharge certificate showing character of service; and,
(6) Copy of extracts from payroll documents showing periods of service;
(7) Letter from National Disaster Medical System (NDMS) Team Leader or Administrative Officer verifying dates and times of NDMS training or Federal activation.
(b) The types of documents that are necessary to establish eligibility for reemployment will vary from case to case. Not all of these documents are available or necessary in every instance to
establish reemployment eligibility."

See: https://www.dol.gov/vets/regs/fedreg/final/ [login to see] .htm#20cfr1002.123

What CAN they do if they suspect you are not being faithful with them, or abusing USERRA? They can of course contact your military unit directly to confirm you were there, and when you were dismissed from your duty, and where your duty was performed, so they can do the mileage and math if they really want to...However, note, your military unit is under no legal obligation to give anyone this information...they probably will, because that would be REASONABLE, but it's not required. Here is a reasonable civilian employer's manager or HR discussion with themselves about this:

"Hmm, let's see. The Sergeant at his Guard Armory just said he was dismissed from drill weekend on Sunday at 1630. That's 4:30 PM in civilian hours. The Armory is at XXX location, and he lives at XXX location. He is allowed safe and reasonable, most direct route travel home. The time spent travelling doesn't count against him. Well, it was snowy and unsafe roads on that Sunday, so while Map Google says it was 152 miles (by road), I know he couldn't drive the normal speed safely, so let's double the travel time (for safe travel)...that makes it about 6 hours of travel, more or less. Then, once he gets home, he gets 8 hours of uninterrupted rest (at least not interrupted by us, his civilian employer). Then, I can put him back on the clock. In fact, I MUST put him back on the clock even in the middle of a regularly scheduled shift if he asks for it, cannot deny him work unless there is a bonafide safety or flat out impossible business reason like flying him out to an oil rig when the helicopters only fly every 12 hours...Now, 4:30 PM on Sunday plus 6 hours travel time = return to home about 10:30 PM. Then 8 hours of rest. That means he cannot be put back onto the clock until 6:30 AM on Monday, at the earliest. To be safe, since it takes him roughly 30 minutes to get to work safely, we should NOT schedule him for work until 8 hours PLUS safe travel from home to work...just to be on the safe side and guarantee him all the protections of the spirit of this Federal law called USERRA that I know the US Department of Justice uses to crush in US Federal courts a business like ours if we abuse it...so let's not abuse it and make my business go bankrupt trying to fight the US Government (since I know we'll lose once they get involved anyway). SO that means I'll put him back on the clock NOT EARLIER THAN 7:00 AM, Monday morning. Even if that is halfway through his shift, he is entitled to work that part-day and we'll just have to adjust for this with our staffing. I'll make a note to myself to call him into the office here to make sure we know when all of his upcoming military duty will be, so we can adjust our staffing schedules to cover down on his military leaves of absence. I know he is required to tell us in advance, as far out as practicable, about all his upcoming military duty and any changes (because his Sergeant said so), so I'll ask him about those dates and times, and then we can work out the schedules and make sure that the business is covered and complies with the law, he gets to and from our job to his military job safely and ready to participate as a Soldier, and makes this as painless as possible for everyone. And since I know I can't lawfully ask him to provide proof that he actually performs any military duty of less than 30 days, I'll make a note to politely (so as to avoid any perception of discrimination since we don't want to be sued in Federal court and get crushed like a bug on the wall...) ask him after each period of military duty just to verbally confirm he went and roughly what his hours of duty were...that's reasonable. We are going to work really hard with him to make this work, so it's a two way street for everyone to win."

Now, if your employer isn't doing that, talking like that, then they are probably discriminating against you based upon your past, current, and future military duty. That is a violation of Federal law, and exposes them to both criminal and civil penalties in Federal District Court. If it gets to Court, the US Attorney's Office for your area will be the one enforcing the law, after some lower-level entities do investigations and ask a whole lot of uncomfortable questions (most of then directed to the Employer), using subpoena powers and asking for reams and reams of paper, records, pay files, employer policies, perhaps even emails and other communications. IT's very nasty to go there, and the employer loses virtually every single time once it gets past that stage...

If you encounter any problems at all, you should first try to work it out internally with your management, HR, the owner, IG, in-house attorney, whomever. If that doesn't work, make sure your military unit knows, because either your Admin officer, Commander, or the JAG attorney who services your reserve unit can make a call on your behalf. Next, you should call ESGR and ask them for help.

Contact ESGR at: http://www.esgr.mil/USERRA/USERRA-Contact.aspx

ESGR will work through the options and issues, and most of the time they can help right away through "mediation." I first learned of them in 1999 when I needed some assistance with a problem with my local government employer when I was a reservist. It did take some time in my case, but with the ESGR assistance, my case was resolved in my favor, I was paid some $$$ they owed me, they apologized (I didn't ask, they just offered once they were finally convinced they had made a mistake), and they made a written amendment to their City Policy Manual to update it to reflect the modern USERRA policies that were required...I still have the letters the City Attorney sent me that changed in tone from sort of nasty, "We're right, you're not, and since you're not an attorney how could you possibly think you were right?..." to "We are happy to inform you that we have reviewed your case and concluded that you are owed $$$ (which you will find an attached check in that amount), that both Federal and State law on this matter are very clear, and as a result, we have updated our City Policy Manual to reflect the current laws to ensure that all City employees benefit from this greater understanding of the law and their rights and benefits under the law. Thank you for your continued military service..." Blah, blah...

If that still doesn't work, you can hire your own attorney, if you wish, and bring suit in any court (local, state, federal) at your own expense. And you can of course ask the Department of Labor VETS office to intervene. You don't have to ever hire your own attorney, it's just an option as an American citizen to hire an attorney and sue someone... And you DON'T have to use ESGR, they are a preferred option, but they are not guaranteed and while they are free, you might still just go straight to VETS (also free) and file a complaint there. If ESGR is still working on it, VETS will coordinate with them, and one or the other will try to finish it. If VETS cannot get compliance, and VETS (unlike ESGR) has investigators with subpoena powers, then VETS will refer the case to the US Attorney's office for possible prosecution (again, free for you). Very, very few cases get that far. And of those that make it to the US Attorney's office, very, very few are filed and go to trial, because by then the issues have been worked out: either the employer is to blame for discriminating and has rolled over and said they're sorry, or the employee was a lying sack of crap who has been found out for cheating and abusing the USERRA laws. Very few of the latter, many of the former once it gets to that stage and the civilian employer realizes that playing chicken with a freight train called the US Government's essentially limitless resources and attorneys and paralegals and court decisions and precedents...not worth going to Federal court just to lose.

Contact DOL VETS at: https://www.dol.gov/vets/programs/userra/

___________________________________________________________________________________
FOURTH PART, for Tennessee Employment Law for Reserve/Guard

While most States have enacted State laws that for the most part mirror the Federal USERRA laws to specifically address questions arising in their States, State courts, and for National Guardsmen who perform State Active Duty (not Federal duty), Tennessee isn't one of those States, so you have the Federal USERRA protections, and a general TN prohibition against discrimination of military members. However, you might live or work in another State, or perhaps transfer to another State's Guard at some time, so you should always look at the State laws that may apply to you.

As I noted, some States have stronger laws than others. For example, California's Military and Veteran's Code (CA M&VC) is mostly verbatim rehash of the Federal USERRA, but it adds some additional protections...AND IT APPLIES ALL OF THE CA M&VC TO ALL FEDERAL AND STATE EMPLOYERS, WHETHER ON FEDERAL OR STATE DUTY WITHIN CALIFORNIA.

See this website: http://www.nolo.com/legal-encyclopedia/tennessee-laws-military-leave.html

"Tennessee Laws on Military Leave

USERRA protects employees who serve in the United States military, including those who serve in the Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves, Army or Air National Guard, and Commissioned Corps of the Public Health Service. If you work in Tennessee and you need time off for service in one of these branches of the U.S. military, you are protected by USERRA.

A number of states have enacted protections similar to those guaranteed by USERRA for members of the state’s militia or National Guard. However, Tennessee isn’t one of them.

Tennessee law prohibits employers from terminating or refusing to hire an employee based on his or her membership in the Tennessee National Guard or need to be absent from work for required drills, including annual field training.

If you have faced discrimination because of your military service, or you have been denied the reinstatement and other rights available to you under USERRA or Tennessee law, check out servicemembers.gov, the Department of Justice's website devoted to enforcing USERRA and other laws that protect the rights of those who serve in the military. You'll also find helpful information at the website of Employer Support for the Guard and Reserve."

Here is the TN law on discrimination (it's felonious!) against any military person (see -- http://www.blr.com/HR-Employment/Benefits-Leave/Military-Service-USERRA-in-Tennessee):

(TN Code Sec. 58-1-604) Employers are prohibited from terminating or refusing to hire an individual because of membership in the state National Guard. Violation of this provision is a class E felony.

AND...

If you are an employee of ANY public agency of the State of TN, including any county or local governmental organizations, school districts, etc., there ARE some additional laws that specifically pertain ONLY to those public employees. They are found in Title 8, Chapter 33, of the Tennessee Code: (see -- https://www.lexisnexis.com/hottopics/tncode/)

Chapter 33 Employees in Military Service
doc Checked 8-33-101. Chapter definitions.
doc Checked 8-33-102. Reemployment after discharge from service.
doc Checked 8-33-103. Reemployment in different department.
doc Checked 8-33-104. Rights after reemployment.
doc Checked 8-33-105. Military leave to report for duty -- Reinstatement on rejection.
doc Checked 8-33-106. Enforcement by commissioner of human resources.
doc Checked 8-33-107. Enforcement in chancery.
doc Checked 8-33-108. Inconsistent laws inapplicable.
doc Checked 8-33-109. Reservists' leave of absence.
doc Checked 8-33-110. Unpaid leave for members of Tennessee army and air national guard, Tennessee state guard and civil air patrol.

AND...TCA 8-33-110 above, DOES pertain to private employers/employees (i.e., NOT Govt Agency) as well as Public Employees of TN, specifically and only for the purpose of providing an unpaid military leave of absence for as long as necessary for any member of the TN National Guard or State Guard performing State Duty during State emergencies (NOT Federalized).

___________________________________________________________________________________
CONCLUSION:

As a final note, the law and DoD policy REQUIRES that your military unit consider any request for assistance from your civilian employer, whether for information or proof of service or potentially adjusting your days of reserve duty. HOWEVER, the law does NOT require that your military unit comply with these requests...only that the unit Commander must "consider" them. A REASONABLE commander would prioritize the requests, ask some questions, perhaps consult a JAG, and then call the employer back, though, in the interests of fairness and in making everything run as smoothly as possible.

elaws - employment laws assistance for workers and small businesses

Replace the word

Response by MSgt David Hopkins made Mar 16 at 2017 6:22 PM

2017-03-16T18:22:12-04:00

I have had some personal dealings with V.E.T.S as it pertains to USERRA. They told me that unless an employer out right says they are singling you out for military service there isn't much V.E.T.S can do. In my case it was a wrongful termination by a nuclear security contractor within a year of returning from OEF with a union arbitration win on the case still V.E.T.S rep said nothing they could do the law has no teeth, this was in 2004. I know this sounds like I'm being Debbie downer but these are the facts of my case. I took my arbitration win turned it into a settlement and moved on to a better job but V.E.T.S had nothing to do with it and was absolutely no help.

Response by MSgt David Hopkins made Mar 16 at 2017 6:37 PM

2017-03-16T18:37:09-04:00

I have had some personal experience as it pertains to V.E.T.S and USERRA. In my case it was a wrongful termination buy a nuclear security contractor within a year of returning from operation enduring freedom in 2004. The V.E.T.S representative told me even though I had won a union arbitration on the case unless an employer specifically singles you out and states that it is for military service there is nothing they can do. I took my arbitration win and turned it into a settlement and then got a better job but V.E.T.S had nothing to do with it due to the fact USERRA has no teeth. Sorry to sound like a Debbie Downer but that is the way it is pick your fights wisely.

Response by Sgt Mathew Meyer made Apr 6 at 2023 5:21 PM

2023-04-06T17:21:49-04:00

Yes. USERRA protects you. 20 CFR 1002.74 "At 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.
(a) If the employee performs a full overnight shift for the civilian employer and travels directly from the work site to perform a full day of uniformed service, the employee would not be considered fit to perform the uniformed service. An absence from that work shift is necessitated so that the employee can report for uniformed service fit for duty."
Based upon my conversation with a DOL VETS investigator, the agency interprets this section as requiring at least 8 hours of rest and time for safe travel, and mirrors the reporting back to work requirements under 20 CFR 1002.115(a).
Contact ESGR and we can assign an Ombudsman to assist you.
I am an ESGR Ombudsman Director (Minn.) and National Trainer for USERRA.

Response by Sgt Mathew Meyer made Jun 13 at 2023 2:48 PM

2023-06-13T14:48:38-04:00

20 CFR 1002.74: "Must the employee begin service in the uniformed services immediately after leaving his or her employment position in order to have USERRA reemployment rights?
No. At 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....
(a) If the employee performs a full overnight shift for the civilian employer and travels directly from the work site to perform a full day of uniformed service, the employee would not be considered fit to perform the uniformed service. An absence from that work shift is necessitated so that the employee can report for uniformed service fit for duty."
The preamble to the regs makes clear that the SM is entitled to enough time for safe travel and rest (at least 8 hours).

Response by Sgt Mathew Meyer made Jul 16 at 2023 11:35 AM

2023-07-16T11:35:36-04:00

ESGR Ombudsman Director (MN)/ESGR National Trainer/Attorney here.

This is a recurring issue, especially with first responders who are also SMs. USERRA and the regulations specifically address this. Under 20 CFR 1002.74 states:

"Must the employee begin service in the uniformed services immediately after leaving his or her employment position in order to have USERRA reemployment rights?

No. At 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. Depending on the specific circumstances, including the duration of service, the amount of notice received, and the location of the service, additional time to rest, or to arrange affairs and report to duty, may be necessitated by reason of service in the uniformed services. The following examples help to explain the issue of the period of time between leaving civilian employment and beginning of service in the uniformed services:

(a) If the employee performs a full overnight shift for the civilian employer and travels directly from the work site to perform a full day of uniformed service, the employee would not be considered fit to perform the uniformed service. An absence from that work shift is necessitated so that the employee can report for uniformed service fit for duty"

The DOL-VETS interprets and applies this Regulation as requiring sufficient time for adequate "rest" and safe travel. "Rest" should be at least 8 hours, but may require more based upon the circumstances.

Hopefully this answers your questions. Please refer your ER to this particular regulation, or to http://www.ESGR.mil where there are resources available so ERs can better understand their obligations under USERRA.

(Note also that a SM may be entitled to an extended, or intermittent, time off prior to a lengthy deployment. It all depends.... But in your situation, you MUST be allowed sufficient time for rest (at least 8 hours) plus safe travel time prior to military service.)

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Response by Sgt Mathew Meyer made Jul 16 at 2023 11:35 AM

2023-07-16T11:35:37-04:00

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