VERMONT LAW PERTAINING TO NATIONAL GUARD SERVICE
By Captain Samuel F. Wright, JAGC, USN (Ret.)[1]
And Austin M. Giesel[2]
Q: I am a Staff Sergeant in the Vermont Army National Guard. I recently joined the Reserve Officers Association (ROA), after you amended your constitution to make noncommissioned officers eligible for membership. I have found your “Law Review” articles[3] about the Uniformed Services Employment and Reemployment Rights Act (USERRA) and other laws to be very valuable to me and my National Guard colleagues in understanding, asserting, and enforcing our rights with respect to our civilian employers, concerning our National Guard service and the absences from our civilian jobs that are necessitated by that service.
As a traditional National Guard member, I participate in at least one weekend of “drills” per month and two weeks of annual training per year. I understand that, as you explained in Law Review 13099 (July 2013), this is not my father’s National Guard. My “weekend drills” are not always limited to Saturdays and Sundays and my annual training is not limited to two weeks once per year. I know Daniel Brown, the Vermont Army National Guard Sergeant you discussed in Law Review 0936 (August 2009). Like Daniel Brown, I was involuntarily called to active duty and deployed to Afghanistan for many months in 2009-10.
I work for a city government in Vermont. The city reemployed me when I returned from Afghanistan in 2010, but the city attorney insisted that this was by grace and that the city had no legal obligation to do so. The city attorney insists that my right to time off for military training and service, even without pay, is limited to 15 days per year, and that anything beyond that is at the discretion of the Mayor. The city attorney referred to “21 V.S.A. 491” but I do not even know what that means. Is the city attorney correct that I have no right to time off from my civilian job, even without pay, beyond 15 days per year?[4]
A: No. The city attorney is wrong. Under USERRA, a federal law that trumps conflicting state law, you have the right to time off (without pay) for voluntary or involuntary military training and service without any limit except USERRA’s five-year limit, and there are nine exemptions from that limit.[5]
The city attorney is citing title 21 of Vermont Statutes Annotated (V.S.A.), section 491, which provides as follows:
(a) Any duly qualified member of the reserve components ofthearmed forces,[6] of the ready reserve, or an organized unit of the national guard shall upon request be entitled to leaves of absence for a total of 15 days in any calendar year for the purpose of engaging in military drill, training, or other temporary duty under military authority. A leave of absenceshall be with or without pay as determined by the employer. Upon completion of the military drill, training, or other temporary duty under military authority, a permanent employee shall be reinstated in that position with the same status, pay, and seniority, including seniority that accrued during the period of absence.
(b) A member of or an applicant for membership in the national guard in either federal or state status as defined in 20 V.S.A. §§ 366, 601, or 602, shall not be denied initial employment, reemployment, retention of employment, promotion, or any benefit of employment by an employer on the basis of membership, application for membership, performance of service, application for service, or obligation to serve.
21 V.S.A. 491 (emphasis supplied).
Also pertinent is section 492(b), which provides:
(b) Any person who is absent from employment necessitated by service in the National Guard as permitted under section 491 of this title shall be entitled to the reemployment rights and benefits provided in 38 United States Code §§ 4312-4318.
21 V.S.A. 492(b) (emphasis supplied).
Sections 491 and 492(b) are largely irrelevant because the rights these sections confer are substantially less generous than the rights that you and other service members enjoy under USERRA. The federal law is a floor and not a ceiling on your rights as a member of a reserve component of the armed forces. Section 4302 of USERRA provides:
(a) Nothing in this chapter shall supersede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chapter.
(b) This chapter supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefitprovided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.
38 U.S.C. 4302 (emphasis supplied).[7]
USERRA gives you the job-protected right to be absent from your civilian job (federal, state, local, or private sector) essentially without limit. A state law that purports to limit your right to 15 days per year is clearly void under 38 U.S.C. 4302(b). The “Supremacy Clause” of the United States Constitutionprovides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.[8]
United States Constitution, Article VI, Clause 2.
As a nation, we are commemorating the sesquicentennial of a great war fought about the supremacy of federal authority over state authority, and the federal side won. Vermont is in the part of the country where government officials do not ordinarily need to be reminded that General Ulysses S. Grant did not surrender to General Robert E. Lee at Appomattox Courthouse.
As I (Wright) explained in Law Review 1281 and other articles, you have the right to reemployment under USERRA if you meet five simple conditions:
- You left a civilian job (federal, state, local, or private sector) for the purpose of performing voluntary or involuntary service in the uniformed services, as defined by USERRA.
- You gave the employer prior oral or written notice.
- You have not exceeded the cumulative five-year limit on the duration of the period or periods of uniformed service, relating t the employer relationship for which you seek reemployment. This requirement is discussed in greater detail below.
- You were released from the period of service without having received a disqualifying bad discharge from the military.[9]
- After release from the period of service, you made a timely application for reemployment.[10]
If you meet these five conditions, you have the right, as a matter of federal law, to be reinstated into the position that you would have attained if continuously employed or another position, for which you are qualified, that is of like seniority, status, and rate of pay.[11] Upon reemployment, the employer must treat you, for seniority and pension purposes, as if you had been continuously employed in the civilian job during the time that you were away from the job for uniformed service.[12]
Section 4312(c) of USERRA sets forth the five-year limit and its exemptions, as follows:
Subsection (a) [the right to reemployment] shall apply to a person who is absent from a position of employment by reason of service in the uniformed services if such person’s cumulative period of service in the uniformed services, with respect to the employer relationship for which a person seeks reemployment, does not exceed five years, except that any such period of service shall not include any service--
(1) that is required, beyond five years, to complete an initial period of obligated service;
(2) during which such person was unable to obtain orders releasing such person from a period of service in the uniformed services before the expiration of such five-year period and such inability was through no fault of such person;
(3) performed as required pursuant to section 10147 of title 10, under section 502(a) or 503 of title 32, or to fulfill additional training requirements determined and certified in writing by the Secretary concerned, to be necessary for professional development, or for completion of skill training or retraining; or
(4) performed by a member of a uniformed service who is--
(A) ordered to or retained on active duty under section 688, 12301(a), 12301(g), 12302, 12304, or 12305 of title 10 or under section 331, 332, 359, 360, 367, or 712 of title 14;
(B) ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress, as determined by the Secretary concerned;
(C) ordered to active duty (other than for training) in support, as determined by the Secretary concerned, of an operational mission for which personnel have been ordered to active duty under section 12304 of title 10;
(D) ordered to active duty in support, as determined by the Secretary concerned, of a critical mission or requirement of the uniformed services;
(E) called into Federal service as a member of the National Guard under chapter 15 of title 10 or under section 12406 of title 10; or
(F) ordered to full-time National Guard duty (other than for training) under section 502(f)(2)(A) of title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds, as determined by the Secretary concerned.
38 U.S.C. 4312(c) (emphasis supplied).
Your inactive duty training (drill) periods and annual training periods are exempt from the computation of your five-year limit, without regard to what day of the week the training is conducted on, under section 4312(c)(3). Additional training periods, beyond the minimum required by 32 U.S.C. 502(a) and 503, are exempt from the five-year limit if the Secretary of the Army (the “Secretary concerned” with respect to the Army National Guard) has determined and certified these additional training periods “to be necessary for professional development, or for skill training or retraining.” Id.
Involuntary active duty periods (like your involuntary call-up in 2009-10 for service in Afghanistan) are exempt from the five-year limit under section 4312(c)(4)(A). Voluntary active duty periods can be exempted under sections 4312(c)(4)(B), (C), or (D), if the Service Secretary makes the necessary determination and certification.
Section 4312(h) provides:
In any determination of a person’s entitlement to protection under this chapter, the timing, frequency, and duration of the person’s training or service, or the nature of such training or service (including voluntary service) shall not be a basis for denying protection of this chapter if the service does not exceed the limitations set forth in subsection (c) [the five-year limit] and the notice requirements established in subsection (a)(1) [prior notice to the employer] and the notification requirements established in subsection (e) [timely application for reemployment] are met.
38 U.S.C. 4312(h).
As I explained in Law Review 104 and other articles, Congress enacted USERRA (Public Law 103-353) in 1994, as a long-overdue rewrite of the Veterans’ Reemployment Rights Act (VRRA), which dates from 1940. USERRA’s 1994 legislative history explains the purpose and effect of section 4312(h) as follows:
Section 4312(i) [later renumbered 4312(h)] is a codification and amplification of the Supreme Court’s ruling in King v. St. Vincent Hospital, 112 S. Ct. 570 (1991), which held that there was no limit as to how long a National Guardsman could serve on active duty for training and still have reemployment rights under the former section 2024(d) of title 38. This new section makes clear the Committee’s [House Committee on Veterans’ Affairs] intent that no “reasonableness” test be applied to determine reemployment rights and that this section prohibits consideration of timing, frequency, or duration of service so long as it does not exceed the cumulative limitations under section 4312(c) and the servicemember has complied with the requirements under sections 4312(a) and (e).
The Committee believes, however, that instances of blatant abuse of military orders should be brought to the attention of the appropriate military authorities (see Hilliard v. New Jersey Army National Guard, 527 F. Supp. 405, 411-412 (D. N.J. 1981)), and that voluntary efforts to work out acceptable alternatives could be attempted. However, there is no obligation on the part of the servicemember to rearrange or postpone already-scheduled military service nor is there any obligation to accede to an employer’s desire that such service be planned for the employer’s convenience. Good employer-employee relations dictate, however, that voluntary accommodations be attempted by both parties when appropriate.
House Report No. 103-65, 1994 United States Code Congressional & Administrative News 2449, 2463.
Thus, it is clear beyond any question that your right to time off work for military training and service is not limited by 21 V.S.A. 491 and it is not limited by what the employer or even the court considers to be “reasonable” under the circumstances.
Q: What about state active duty? In addition to my drill weekends and annual training and my 2009-10 involuntary mobilization for service in Afghanistan, I have also been called up several times by the Governor of Vermont for state emergencies, including blizzards, floods, riots, etc. Does USERRA give me the job-protected right to be absent from my civilian job for state active duty?
A: No. USERRA gives you the job-protected right to be absent from your job for military training and duty under title 32 or title 10 of the United States Code, including active duty, initial active duty training, inactive duty training, active duty for training, full-time National Guard duty, funeral honors duty, and time required to be away from your civilian job for purposes of an examination to determine fitness to perform any such duty. USERRA does not protect your civilian job when you are away from that job for state active duty, called by the Governor and paid by the state, for state emergencies. Your right to be away from your job for state active duty is governed by state law—e.g., 21 V.S.A. 491.
Q: Does that mean that my right to be away from my city job for state active duty is limited to 15 days per calendar year?
A: Apparently so. State active duty periods typically only last for a few days each, but it is not difficult to envision circumstances where the state could need you on state active duty for more than 15 days in a calendar year. For example, you could be called for a blizzard in February, a flood in April (when all that snow melts during a heavy rain), a prison riot in August, and another blizzard in December.
Q: My good friend Ethan Allen works here in Vermont (for a small company) but lives just across the state line in New Hampshire. He is a Sergeant in the New Hampshire Army National Guard. If he is called to state active duty by the Governor of New Hampshire, for a New Hampshire emergency, does he have enforceable reemployment rights at the Vermont company?
A: Probably not.The Vermont statutory sections that are cited in 21 V.S.A. 491 only pertain to the Vermont Governor’s authority to mobilize the Vermont National Guard. This implies that the right to time off work, under section 491, for state active duty, is limited to Vermont state active duty.
[1] Captain Wright is the Director of the Service Members Law Center (SMLC) at the Reserve Officers Association (ROA). He can be reached by telephone at 800-809-9448, extension 730. His e-mail is .
[2]Austin M. Giesel has completed his first year of law school at Georgetown University in Washington, DC. He is a summer associate at the SMLC in the summer of 2014.
[3] We invite the reader’s attention to You will find almost 1100 articles about laws that are especially pertinent to those who serve our country in uniform, along with a detailed Subject Index and a search function, to facilitate finding articles about very specific topics. ROA initiated this column in 1997, and we add new articles each week, including 169 new articles added in 2013.
[4] The factual situation used as the set-up for this article is fictitious but realistic.
[5] Please see Law Review 201 (August 2005) for a detailed discussion of what counts and what does not count toward exhausting your five-year limit with your current employer.
[6] There are seven reserve components: the Army National Guard, the Army Reserve, the Air National Guard, the Air Force Reserve, the Navy Reserve, the Marine Corps Reserve, and the Coast Guard Reserve.
[7] The citation is to title 38, United States Code, section 4302. USERRA is codified at 38 U.S.C. 4301-4335.
[8] Yes, it is capitalized just this way, in the style of the late 18th Century.
[9] Under 38 U.S.C. 4304, you are disqualified from reemployment if you received a bad conduct discharge or dishonorable discharge as part of a sentence imposed by a court martial, or if you received an other-than-honorable administrative discharge, or if you were dismissed or dropped from the rolls of your uniformed service.
[10] After a period of service of 181 days or more, you have 90 days to apply for reemployment. 38 U.S.C. 4312(e)(1)(D). Shorter deadlines apply after shorter periods of service.
[11] 38 U.S.C. 4313(a)(2)(A).
[12] 38 U.S.C. 4316(a), 4318.