Posted on Jan 8, 2016
Any laws regarding midnight shifts for National Guard soldiers right before a drill?
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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.
Posted >1 y ago
Responses: 17
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 (Join to see) for originally pointing out this regulation.
"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 (Join to see) for originally pointing out this regulation.
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.
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COL Vincent Stoneking
LTC Yinon Weiss Thanks for posting this. To be honest, it is exactly the opposite of what I expected the answer to be. And I've been doing this Reserve thing for a little while now... Very surprised that USERRA actually got to the "graveyard shift" granularity.
Yet another proof of the value of this site.
Yet another proof of the value of this site.
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CAPT (Join to see)
ROA has redefined "officer" to include NCO and Petty Officers for membership. Highly recommend enlisted join.
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SPC (Join to see)
What if the employer is making me work right after Guard Training on the same day and I have to work a 12 hour shift until 7am the next day is that legal?
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COL Mark Voichoski
No, that would not comply with USERRA. You get time to travel safely home from training plus 8 hours of rest. See Law Review 156 at the following link.
https://cdn.ymaws.com/http://www.roa.org/resource/resmgr/LawReviews/1-206/156-LR.pdf
https://cdn.ymaws.com/http://www.roa.org/resource/resmgr/LawReviews/1-206/156-LR.pdf
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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
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
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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.
ESGR is a good resource.
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CW3 Kevin Storm
First come armed with why it is an advantage to the employer to let you go, what extra skill sets you bring to the table because you are in the Guard. Soften the blow to the amount possible before playing the law and ESGR. Keep in mind, every action has a reaction, it could be shear ignorance of your plight
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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.
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LTC Yinon Weiss
Can you post a link to the specific code? Would be helpful to have it prior to discussing it with the employer.
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SFC (Join to see)
http://www.servicemembers-lawcenter.org/site/mobile?url=http%3A%2F%2Fwww.servicemembers-lawcenter.org%2FLaw_Review_12112.html#2974
Not the exact code, Sir. This references a situation similar to the topic.
Not the exact code, Sir. This references a situation similar to the topic.
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SFC (Join to see)
Section 4331(a) of USERRA [38 U.S.C. 4331(a)] covers what I am talking about. I try to post the link to the page that referenced a situation similar to this, but the link is not showing up.
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LTC Yinon Weiss
SFC (Join to see) - Thank you! I just posted a response with details based on the regulations you provided. Outstanding find!
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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.
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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?
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SSG (Join to see)
Yes, USERRA also covers that. An employee can not be forced to use PTO to cover an absence due to military service. Since USERRA also requires that an employee have enough time off prior to drill to be fit for service I would interpret that to mean that time off would be considered military service related. That said... it might be best to confirm this with an ESGR rep.
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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.
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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.
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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
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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
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
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