Posted on Jan 8, 2016
SGT Squad Leader
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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 in these groups: 176th CSSBArmy-national-guard-logo Army National GuardEsgr_logo ESGR
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LTC Board Member
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Edited 4 y ago
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.
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SFC Laborer
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Thank you sir for finding and posting this.
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LTC Board Member
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SFC (Join to see) - Thank you for the regulation... outstanding contribution.
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COL Manager, Project Management Office
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LTC (Join to see) 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.
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CAPT Command & Staff
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ROA has redefined "officer" to include NCO and Petty Officers for membership. Highly recommend enlisted join.
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CPT Infantry Officer
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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
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1SG Claims Assistant
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Edited 4 y ago
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.
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CW3 Kevin Storm
CW3 Kevin Storm
4 y
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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