Employment Protections for Members Of

EMPLOYMENT PROTECTIONS FOR MEMBERS OF

THE WEST VIRGINIA NATIONAL GUARD

By Nathan M. Richardson[1]

Today’s National Guard traces its origins to 1636, when the Massachusetts Bay Colony established the Massachusetts militia to defend the colony against attacks by the Pequot Indians. Other colonies and states later established similar state militias. Early in the 20th Century, Congress established the National Guard as a hybrid federal-state organization. National Guard members are subject to call by the President for national emergencies, and they train periodically for that contingency. National Guard members are also subject to state call-ups, by the Governor.

A federal statute called the Uniformed Services Employment and Reemployment Rights Act (USERRA)[2] accords the right to reemployment to a person who leaves a civilian job (federal, state, local, or private sector) for voluntary or involuntary service in the uniformed services (as defined by USERRA) and who meets the USERRA eligibility criteria.[3]USERRA protects the civilian jobs of National Guard members after military training or service under title 10 or title 32 of the United States Code, but USERRA does not apply to state active duty. If National Guard members are to have reemployment rights after state active duty, it must be by state law.

Like every other state, West Virginia has enacted a statute to protect the civilian jobs of National Guard members on state active duty. Section 15-1F-8 of the Code of West Virginia provides:

Members of the organized militia[4] in the active service of thestate shall be entitled to the same reemployment rights granted to members of the reserve components of the armed forces of the United States by applicable federal law.

Emphasis supplied.

This provision extends USERRA-type protections to West Virginia National Guard personnel on state active duty for the State of West Virginia.[5] However, it also limits its protection to members of the West Virginia National Guard--the statute clearly identifies“members in active service of the state.”Because of this limitation, a coverage gap exists for persons who are members of the National Guard in other states, but whose primary civilian employment is located in West Virginia.

For example, Thomas Jackson teaches at a private military academy in Augusta, West Virginia. He is also a member of the Virginia Army National Guard. When his unit is called to active Virginia service in northern Virginia, Jackson will not be entitled to the protections of West Virginia’s reemployment statute. Jackson is neither a member of “the organized militia” referenced in the statute, nor is he employed “in active service of the state.”

At this time, West Virginia has not enacted a specific statute as an enforcement mechanism for its protective provisions. Other states have adopted such statutes, granting employees a civil cause of action in damages and/or equity against employers who violate employment protections such as West Virginia’s.

[1] Nathan M. Richardson has completed his first year of law school and George Washington University in Washington, DC and is a summer associate, providing very valuable legal research assistance to the Service Members Law Center.

[2] USERRA is codified in title 38, United States Code, sections 4301-4335.

[3] The person must have left the civilian job for the purpose of performing uniformed service and must have given the employer prior oral or written notice. The person’s cumulative period or periods of uniformed service, relating to the employer relationship with that employer, must not have exceeded five years, but certain kinds of service are exempt from the computation of the person’s five-year limit. The person must have been released from the period of service without having received a disqualifying bad discharge from the military and after release the person must have made a timely application for reemployment.

[4] The “organized militia” includes the West Virginia Army and Air National Guard as well as the West Virginia State Guard, a purely state entity.

[5]The Service Members Law Center’s law review index contains hundreds of articles on USERRA’s protections, authored and co-authored by CAPT Samuel F. Wright, JAGC, USN (Ret.),Service Members Law Center Director.