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National Guard Obligation
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An applicant for our weekend schedule (Friday, Saturday & Sunday 6 AM - 6:30 PM) advised me that he would not be able to work weekends once a month due to his National Guard drill. Normally, We ar
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National Guard Obligation

posted at 8/15/1999 11:09 PM EDT
Posts: 8
First: 8/15/1999
Last: 1/16/2004
An applicant for our weekend schedule (Friday, Saturday & Sunday 6 AM - 6:30 PM) advised me that he would not be able to work weekends once a month due to his National Guard drill. Normally, We are very willing to work with our employees' Reserve and Guard obligations, but I think that missing work 1/4 of the time is a bit excessive. He has offered to work on Monday and Wednesday during his drill week. I am considering this but we have 600 employees and I worry that we would be obligated to extend this type of flexibility to everyone. If the applicant is otherwise qualified, am I legally required to make my hiring decision without regard to his military obligation?
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National Guard Obligation

posted at 8/16/1999 6:29 PM EDT
Posts: 2217
First: 6/16/1999
Last: 12/13/2001
Erik, you will want to take a look at 38 U.S.C. 4311, part of the Veterans Employment and Reemployment Rights Act ("VERRA"). In essence, this provision prohibits "discrimination" against persons who have an obligation to perform service in a uniform service. It applies to initial employment as well as reemployment. Your state may have a similar statute on the books as well.
Thus, like any other discrimination statute, the answer to your query will turn on the specific facts of your case. Your lawyer would probably want to know:
-- what job is the applicant seeking?
-- how important in that job to your organization?
-- how many other employees perform that job?
-- why is the job a weekend job and can you restructure the job to accomodate the service obligation?
-- if the applicant were not in the guard, would you offer the job to him or her (i.e., is s/he the most qualified for the position)?

If you need a referral to an attorney in your neck of the woods, do not hesitate to contact me.
Matthew T. Miklave
Epstein Becker & Green, P.C.
250 Park Avenue
New York, New York 10177
(212) 351-4663
(212) 661-0989 (fax)
MMiklave@ebglaw.com (e-mail)
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