Any laws regarding midnight shifts for National Guard soldiers right before a drill?

SGT Private RallyPoint Member — Fri, 08 Jan 2016 22:35:25 -0500

Wondering if there are any laws protecting a national guard or reservist soldier from civilian employers regarding night shift workers. For example, I am working right now, and do not get off till 3 am. I have drill in the morning at 7am. My unit is 3 hours away, and I still have to shower shave and get ready. Taking all my sleep and still barely making it on time, wondering if something protects me so I can go home at midnight.

Response by MAJ David Vermillion made Jan 8 at 2016 10:42 PM

MAJ David Vermillion — Fri, 08 Jan 2016 22:42:27 -0500

Good question, but it sounds like you could be an unsafe person to be around. You could put yourself as well as others in danger for a lack of rest prior to your committed. take care of yourself. We need you.

Response by SSG Private RallyPoint Member made Jan 8 at 2016 10:43 PM

SSG Private RallyPoint Member — Fri, 08 Jan 2016 22:43:51 -0500

Sadly, I think not man. Soldier who gives me a ride to our unit, which is only an hour away, (that's actually half the state away) works all night before getting home, dressing, and then picking me up on his way to the unit. Don't think there's a regulation for it. Maybe the requirement for 8 hours of rest before a "shift". But I doubt that applies.

Response by SFC Private RallyPoint Member made Jan 8 at 2016 10:44 PM

SFC Private RallyPoint Member — Fri, 08 Jan 2016 22:44:09 -0500

Yes USERRA protects you from dealing with this kind of situation. I would suggest reading into the code and have a talk with your employer about your rights.

Response by CPT Private RallyPoint Member made Jan 8 at 2016 10:53 PM

CPT Private RallyPoint Member — Fri, 08 Jan 2016 22:53:59 -0500

I would seek out your Local ESGR rep. I worked overnight for while but I was not required to work the night prior. It was something I was able to work out with my employer the time. I did run into some issues with another employer. I called up the ESGR and they called me back and dealt with it right away. They deal with this stuff often. If there is something that can be done they will be able to tell you.

http://www.esgr.mil/tn.aspx

Employer Support of the Guard and Reserve About ESGR Contact Local/State Pages Tennessee

Marvin Wells Program Support Technician JFHQ-ESGR 3041 Sidco Dr Nashville TN 38118 615-313-0753 marvin.r.wells.ctr@mail.mil

Response by CW3 Private RallyPoint Member made Jan 8 at 2016 11:08 PM

CW3 Private RallyPoint Member — Fri, 08 Jan 2016 23:08:33 -0500

I agree with the LT about speaking with your ESGR rep for guidance, BUT technically your employer cannot have you working after midnight since a drill weekend (Saturday and Sunday) is a MUTA 4 and each UTA is a 12-hour period. Meaning you're on duty from 0000-2359 Saturday and same on Sunday. That may get you released early from work to sleep a little.

Response by LTC Yinon Weiss made Jan 8 at 2016 11:15 PM

LTC Yinon Weiss — Fri, 08 Jan 2016 23:15:14 -0500

No, the employer is in violation of law in this situation according to Department of Labor Uniformed Services Employment and Reemployment Rights Act (DOL USERRA), 20 C.F.R. 1002.74, and possibly USERRA [38 U.S.C. 4331(a)] Quoted below:

"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."

Full reference can be found here: http://www.servicemembers-lawcenter.org/Law_Review_12112.html

The advice from the article says that you may not have a legal right to leave your shift early, but you do have a legal right not to attend any of your shift if it interferes with you performing your drill duties, which clearly in your situation it does as you cannot reasonably be found fully fit for duty with little to no sleep. Legally speaking, there appears to be two options: 1) Your employer excuses you from the shift completely (your legal right), or 2) Your Employer allows you to leave early (this is at employer discretion). This is the option the employer must choose from.

With that said, I strongly recommend not to take this regulation to the employer and try to trump them with "Look at this regulation! You've got to do this!" I would instead approach the employer with "I feel the shift work I'm doing before drill leaves me in an unsafe position, and it also appears to be out of labor law compliance, and therefore exposes both of us to risk. What do you think we can work out?" --- and try to offer alternatives, like making shift time up later, etc. A reasonable employer will respond very well for this as they don't want labor law compliance risk either.

Big thank you to SFC Private RallyPoint Member for originally pointing out this regulation.

Law Review 12112

Check out http://servicemembers-lawcenter.org! The Servicemembers law Center goal is to provide up-to-date and comprehensive information on the laws governing the service member/employer relationship to all who have a need. Free legal information on laws relevant to reservists.

Response by SFC Wesley Arnold, Jr made Jan 8 at 2016 11:55 PM

SFC Wesley Arnold, Jr — Fri, 08 Jan 2016 23:55:21 -0500

The unfortunate part is (provided both parties know) regardless of regulations or laws; that neither the Soldier's unit or civilian employer, would put jeopardize the safety of said Soldier.

In most of my past units, if you worked mid shift, the night before a pass or leave. You were required to get 4hrs of sleep or have another driver before you were authorized to sign out.

Sounds like you really need a sit down with your boss and try to see if it possible to fulfill you drill requirements another day or with another unit

Response by 1SG Private RallyPoint Member made Jan 9 at 2016 12:29 AM

1SG Private RallyPoint Member — Sat, 09 Jan 2016 00:29:04 -0500

Looks like others beat me to the punch, but I will say this. Be aware that there is tension when your employer thinks that the Army is "more important" than they are. When you approach the boss about it, come armed with some potential solutions that give your employer options like working a different shift those Fridays. Because your employer might view this as "this is the law, so follow it or else"... the boss might just take the "or else" leaving you with a bigger problem. They can't retaliate directly, but those of us in the Reserve Components can tell plenty of tales of Army/employer tension. Diffuse it ahead of time if it is at all feasible.
ESGR is a good resource.

Response by SSG Private RallyPoint Member made Jan 9 at 2016 5:48 AM

SSG Private RallyPoint Member — Sat, 09 Jan 2016 05:48:09 -0500

I'm in a similar situation. I work until 0230 and drill 90 minutes from my residence. I'm grateful that I work 4 10hr shifts and don't really have to worry about this until I have a MUTA 6. Are there laws protecting me from using vacation/PTO to get my shift off before drill?

Response by 1LT Private RallyPoint Member made Jan 9 at 2016 6:42 AM

1LT Private RallyPoint Member — Sat, 09 Jan 2016 06:42:30 -0500

http://www.justice.gov/sites/default/files/crt/legacy/2011/03/23/scratext.pdf you'll find laws for a number of issues. However, their interpretation is sometimes at the granular level vague and as such open to interpretation :)

Response by 1SG Patrick Sims made Jan 9 at 2016 6:57 AM

1SG Patrick Sims — Sat, 09 Jan 2016 06:57:00 -0500

Your in a tough situation. I was a Lieutenant in the Syracuse Fire Department, Syracuse, New York and was required to do most of my fourteen hour night shift, regardless of the fact I had a drill that week end. I suppose it depends on your employer. if they care about you serving our country, they'll cut you some slack. If they were like the bastards I worked for, they won't

Response by SGT Private RallyPoint Member made Jan 9 at 2016 11:55 AM

SGT Private RallyPoint Member — Sat, 09 Jan 2016 11:55:10 -0500

You need to look up USSERA. Most employers actually mention it and military leave in their handbook. It states that you must be given time for travel plus eight hours of rest to be fit for duty. I would recommend giving your drill schedule to your HR manager or immediate supervisor and inform them of your rights as respectful as possible. Your unit should be able to advise you and assist if needed. Know your rights, but don't burn any bridges at the same time.

Response by SPC Private RallyPoint Member made Jan 9 at 2016 3:55 PM

SPC Private RallyPoint Member — Sat, 09 Jan 2016 15:55:28 -0500

Same boat SGT I live in Kentucky and drill in Illinois..4 hours driving.

If I'm correct according to USERRA you are supposed to have 8 hours of rest before drill so if I was you I would tactfully and politely let your supervisor know.

Hopefully he/she is understanding and no further action need to be taken. Good luck

Response by SGT(P) Private RallyPoint Member made Jan 11 at 2016 8:42 AM

SGT(P) Private RallyPoint Member — Mon, 11 Jan 2016 08:42:18 -0500

Definitely contact your ESGR rep. Also, make your CoC aware of the situation. You are protected by USERRA. Make sure that you are doing your part as well and letting your employer know in advance about upcoming training.
Here is an email address for USERRA/ESGR: [login to see] . I suggest contacting them about your situation.

Response by SSG Benny Stewart made Jan 11 at 2016 11:42 AM

SSG Benny Stewart — Mon, 11 Jan 2016 11:42:48 -0500

Worked at Kroger night shift and I think there is but to be sure talk to your first/SGT or Read ness NCO I've done that too many times to count. but when I talked to my first SGT it began to change for me. { all ways now that 1second after mid night you are on drill states }

Response by SSG Private RallyPoint Member made Jan 12 at 2016 4:08 PM

SSG Private RallyPoint Member — Tue, 12 Jan 2016 16:08:33 -0500

Yes, there are laws. I don't know the exact amount of time. I believe its 8 hours from the time you arrive at you HOR. Check out ESGR for the exact regulation/law.

Response by PV2 Thomas Rush made Sep 5 at 2019 1:08 PM

PV2 Thomas Rush — Thu, 05 Sep 2019 13:08:26 -0400

The best initial approach would be to request recovery time from your CO during the late shift in order to avoid the unsafe conditions brought on by excessive loss of sleep. Hopefully your CO won't find any reason to disregard your request, therefore saving both of you the time it would take to make it a legal matter. In the meantime, you may want to find housing that is much closer to your current post, or try to complete your assigned taskings within the time that meets the needed expectations of your CO, if possible.