Number 70-Update, May 13, 2008 (Web site only):
Adequate Travel and Rest Time before Reporting to Military Training
By CAPT Samuel F. Wright, JAGC, USNR*
In Law Review 70 (April 2003), I discussed the issue of adequate travel and rest time before reporting to a drill weekend in the National Guard or Reserve. I continue to hear of situations involving Reserve Component members who work Friday night shifts at their civilian jobs and then drive for several hours in the early morning hours on Saturday, to report for muster at 7 a.m. This sort of activity presents undue risks to human life during the travel and during the performance of military duty on Saturday. We want the Reserve Component member to be able to arrive at the site of military training Friday evening and have a few hours of rest before the Saturday morning muster, so that he or she will be fit for the military duty and able to perform the military duties safely and effectively.
In Law Review 70, I pointed out that section 4331 (38 U.S.C. 4331) of the Uniformed Services Employment and Reemployment Rights Act (USERRA) gives the Secretary of Labor the authority to promulgate regulations about the application of USERRA to state and local governments and private employers. I urged the Department of Labor (DOL) to address this travel and rest time issue in the USERRA regulations, which were then in process.
DOL published draft USERRA regulations, for notice and comment, in September 2004, and the final regulations in December 2005. The final regulations are now published in title 20, Code of Federal Regulations (C.F.R.), part 1002. I am most pleased that the final regulations address this travel and rest time issue definitively and most helpfully.
“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 upon 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.” 20 C.F.R. 1002.74.
, and that those regulations will address the important question that you have raised.
* Military title used for purposes of identification only. The views expressed in these articles are the personal views of the author and are not necessarily the views of the Department of the Navy, the Department of Defense, or the U.S. government.
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