ST44 South Dakota (December 2007; Updated August 2010)
1.18: USERRA and Other Laws
2.0: Paid Leave

Military Leave for Public Employees in South Dakota

By CAPT Samuel F. Wright, JAGC, USN (Ret.)

South Dakota law provides as follows concerning military leave for employees of the state and its political subdivisions:

Any officer and employee of the state of South Dakota, of any political subdivision thereof, or any municipality, organized and existing under the general laws of the state of South Dakota, or any person who is a duly qualified member of a reserve component of the armed forces of the United States, who is a member of the ready reserve, who is a member of an organized unit, and who, in order to receive military training with the armed forces of the United States not to exceed fifteen days in any one calendar year, or who in order to perform active service in the South Dakota national guard in the service of this or any other state pursuant to chapter 33-9 or chapter 33-15, leaves a position other than a temporary position in the employ of any employer, and who shall give evidence defining date of departure and to the extent reasonably possible date of return for purposes of military training or active service as provided above prior to the date of departure and who shall further give evidence of the satisfactory completion of such training or duty immediately thereafter, and who is still qualified to perform the duties of such position, shall be entitled to be restored to his previous or a similar position with the same status, pay, and seniority, provided also that such seniority shall continue to accrue during such period of absence for military training or duty and such period of absence for military training or duty shall be construed as an absence with leave and within the discretion of the employer said leave may be with or without pay.” (South Dakota Codified Laws, section 3-6-22) (emphasis supplied).)

This section is essentially meaningless because a federal law called the Uniformed Services Employment and Reemployment Rights Act (USERRA) gives employees the right to time off from their civilian jobs for voluntary or involuntary service in the uniformed services, including National Guard and Reserve training, and the right to time off without pay under USERRA is essentially unlimited. USERRA applies to state and local governments, as well as private employers and the Federal Government.

Section 4302(a) of USERRA [38 U.S.C. 4302(a)] provides that USERRA does not override or supersede a state law that provides greater or additional rights. For example, most states provide, by state law, for a limited period (usually 15-30 days) of paid military leave for state and local government employees who are members of the National Guard or Reserve. But section 3-6-22 does not give employees the right to paid leave—it simply states that state agencies and political subdivisions have the option to grant paid military leave.*

Because states are not required by USERRA to grant paid military leave at all, it is permissible for a state to limit the duration of the paid military leave period, but a state has no constitutional authority to limit the duration of an unpaid military leave under USERRA. National Guard and Reserve training periods frequently last longer than 15 days per year, and when National Guard and Reserve personnel are mobilized or volunteer for active duty, it is usually for a year or more.

Section 4302(b) of USERRA [38 U.S.C. 4302(b)] provides that USERRA overrides a state law that purports to limit USERRA rights or that imposes an additional prerequisite upon the exercise of those rights. Article VI, Clause 2 of the United States Constitution (commonly called the “Supremacy Clause”) provides that federal law trumps conflicting state law. See Gibbons v. Ogden, 22 U.S. 1 (1824). South Dakota’s attempt to limit the duration of unpaid military leaves under USERRA clearly fails under the Supremacy Clause.

*Note: Section 3-6-22 purports to impose eligibility criteria for reemployment rights that are different from and more onerous than requirements of federal law. Thus, this section is invalid.

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