Protecting National Guard Members’ Employment Rights: South Carolina Adopts New Legislation, Other States to Follow?

Protecting National Guard Members’ Employment Rights: South Carolina Adopts New Legislation, Other States to Follow?

Kristin Tracy*

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was signed into law by President Clinton in 1994 in order to improve upon and replace the Veterans’ Reemployment Rights law of 1940.  Charles T. Passaglia, USERRA: Bolstering Veterans’ Rights, 24 Colo. Law. 577, 577 (1995); see also 38 U.S.C.A. §§ 4301–4333 (West 2015).  One of the main purposes of USERRA is “to prohibit discrimination against persons because of their service in the uniformed services.”  § 4301(a)(3).  Essentially, service members’ civilian jobs are protected under USERRA when they are in a federal active duty status under Titles 10 or 32 of the United States Code.  Id. §§ 4301–4333.  USERRA provides many guarantees, including reemployment rights and continuation of benefits, such as health insurance and pension plans.  Id.  These guarantees, however, only apply to service members who must be absent from their civilian job when they are placed on federal active duty—USERRA does not extend to protect service members on state active duty.  H. Craig Manson, The Uniformed Services Employment and Reemployment Rights Act of 1994, 47 A.F. L. Rev. 55, 86 (1999).   

Because of this caveat, variations of USERRA have been adopted at the state level to afford similar protections to National Guard members.  See, e.g., Ark. Code. Ann. § 12-62-413 (West 2015); Conn. Gen. Stat. Ann. § 27-34a (West 2015); Kan. Stat. Ann. § 48-517 (West 2015); Miss. Code Ann. § 33-1-19 (West 2015); W. Va. Code Ann. § 15-1F-8 (West 2015).  These laws, and the laws of the 45 other states, share the same common purpose of USERRA at the federal level—to ensure that service members do not experience job discrimination or disruption due to their service.  Maryland’s adoption of USERRA, for example, provides in pertinent part:

(b)  The following provisions of federal law shall be adopted as State law and applied to members of the National Guard and Maryland Defense Force:
(2)  the Uniformed Services Employment and Reemployment Rights Act applies when members of the National Guard or Maryland Defense Force are ordered to military duty under this title or Title 10 or Title 32 of the United States Code for any period of time.

Md. Code Ann., Pub. Safety § 13-704 (West 2015).

This statute clearly applies USERRA protections to National Guard and Maryland Defense Force members when they are on state active duty.  Id.  A problem arises, however, when the statutory definition for ‘National Guard’ is examined: “National Guard means the Maryland Army National Guard and the Maryland Air National Guard.”  Id. § 13-101(d).  According to this definition, the Maryland law only protects members of the Maryland National Guard.  Id.  If someone has a civilian job in Maryland, but serves in, for example, the Pennsylvania National Guard, he or she would not be protected from employment discrimination by this law.   This hardly seems just when the underlying goal of USERRA and the supplementary state laws is to prohibit employment discrimination.

This problem is not isolated to Maryland.  According to data compiled by Cpt. Samuel Wright, a retired Judge Advocate for the United States Navy, 34 out of 50 states have this “gap” in their uniformed services employment protection laws.  Samuel Wright, State Law Protections for National Guard Members on State Active Duty, Res. Officers Assoc. (Apr. 2015),  This means that in a majority of states, a National Guardsman is not protected from employment discrimination based on his service to his country if he holds a civilian job in one of those states, but serves in the National Guard of a different state.  Id. 

This problem could easily be solved by amending statutory language, or simply adding a new provision to extend employment protection.  The South Carolina legislature demonstrated this by adding S.C. Code Ann. § 25-1-2350 to Article 18 of its Military Code in May 2015.  S.C. Code Ann. § 25-1-2350 (West 2015).  This section reads:

The provisions of this article granting reemployment rights to members of the South Carolina National Guard and to members of the South Carolina State Guard who, at the discretion of the Governor or by his authority, enter state duty and are honorably released from that duty shall apply also to a person who is employed in South Carolina but is a member of another state’s national or state guard who, at the discretion of the other state’s Governor or by his authority, enters into state duty and is honorably released from that duty.

Id. (emphasis added).  This addition clearly closes the “gap” in the law, and it is not the only effective solution.  For example, Montana took a different approach by defining “state military duty” as “duty performed by a member pursuant to Article VI, section 13, of the Montana constitution,  [or] the authority of the governor of any other state.”  Mont. Code. Ann. § 10-1-1003(7)(a) (West 2015) (emphasis added).  By including those National Guard members who are called to active duty by the governor of any other state, the Montana legislature ensured that any employment protections that apply to servicemen and women in the Montana National Guard are also protective of members of other state National Guards.  See id. § 10-1-1007 (providing the “[r]ight to return to employment without loss of benefits” to those called for “state military duty”).

South Carolina is the most recent addition to the list of 16 states that provide full employment protection to members of the National Guard.  For a group of dedicated men and women whose slogan is “always ready, always there,” South Carolina did what the remaining 34 states should do—guarantee that those same men and women will not lose their civilian jobs because of their service to state and country.  Nat’l Guard, (last visited Feb. 21, 2016).  This is the exact purpose of USERRA, and it should also be the purpose and reality of the corresponding state laws.

* Kristin Tracy is a second-year law student at the University of Baltimore School of Law, where she is a staff editor for Law Review, as well as a Research Assistant for Professor Colin Starger. In the summer of 2015, she interned at the Office of the Staff Judge Advocate for the Maryland National Guard, and she will be working as a 2016 Summer Associate for Duane Morris LLP.

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