Discrimination in Employment

(No specific provision in Title 46 Idaho Code, but see Comment)

38 USC 4311 (a). National Guard service member shall not be denied initial employment, reemployment, retention in employment, promotion or any benefit of employment by an employer on basis of membership in, performance of, application for or obligation for service.

38 USC 4311 (a) protects ING personnel with respect to membership in and application for membership in the Idaho National Guard, or obligation to perform service (since the Guard member may be called into either state or federal active service.) However, 38 USC 4311 does not address performance of State Active Service.

Reemployment Rights

I.C. 46-407. Service member is entitled to reemployment upon release, provided (1) employment position was not temporary, (2) release is under honorable conditions, (3) person remains physically qualified, (4) duty period does not exceed one year, (5) re-employment application is made within 30 days

38 USC 4312 (a). As provided in 38 USC 4313 provided (1) service member has provided advance notice to employer, (2) cumulative length of absence with one employer does not exceed five years, (3) member submits application for reemployment as provided in 38 USC 4312 (e) (varies from immediately to 90 days after return, depending on length of the period of service). (There are exceptions: (1) to the notice requirement, (2) which would extend the five year limit, (3) waiving duty to re-employ in cases of temporary position, changed employer's circumstances or employer hardship, and/or (4) extending reemployment application time up to two years for service members becoming ill or injured as a result of service duty, with possibility for further extension if application for reemployment would have been impossible or unreasonable for service member.

38 USC 4312(a) provides reemployment rights for periods of federal active service for periods of up to five years with one employer, subject to several exceptions which can extend the five year limit or which would waive the employer's duty in case of changed circumstances, hardship, etc. IC 46-407 provides reemployment protection for periods of State Active Duty up to one year, specifies that the re-hired person may not be discharged within one year thereafter without cause, and does not provide changed circumstances or hardship exceptions for the employer.

Reemployment Positions

I.C. 46-407 (b). If still qualified to perform duties of the position held at time of order to duty, personnel shall be restored by employer or employer's successor in interest to that position or one of like seniority, status and pay.

If the member is not qualified by reason of disability sustained during period of duty, but is qualified to perform duties of any other positions in the employ of that employer, then the employer must offer the member that position which he is qualified to perform which is most similar to the former position in seniority, status and pay."

38 USC 4313 (1). For service members whose length of service is less than 91 days, a person entitled to reemployment shall be promptly reemployed in either (A) the position of employment in which the member would have been employed if employment had not been interrupted by service, or (B) the position in which the member was employed on the date of commencement of service if the member is not qualified to fill the position in 4313 (1) (A).

38 USC 4313 (2). For members whose period of service is more than 90 days, a person entitled to reemployment shall be promptly reemployed in (A) the position of employment in which the member would have been employed if continuous employment had not been interrupted by service or a position of like seniority, status and pay, the duties of which the member is qualified to perform, or (B) the position of employment in which the member was employed on the date of commencement of service, or a position of like seniority, status and pay, the duties of which the member is qualified to perform only if the member is not qualified to perform the duties of 4313 (2) (A).

38 USC 4313 (3) Members not qualified to perform under 4313 (1) or 4313 (2) due to service-related illness or injury are to be employed in (A) any other position which is equivalent in seniority, status and pay, the duties of which the member is qualified to perform or would become qualified to perform with reasonable efforts by the employer, or (B) a position which is the nearest approximation to a position referred to in (A) in terms of seniority, status and pay consistent with circumstances of such person's case.

38 USC 4313 (4). Members not qualified or who cannot become qualified under the above are eligible for reemployment in any other position which is the nearest approximation to a position the member would have held but for the service, or held at the time called to service, which such member is qualified to perform, with full seniority.

38 USC 4313 (1) entitles the service member to potential advances or promotions that would have occurred but for the call-up to federal active duty (assuming the member is qualified); IC 46-407 provides only for restoration to the same (or equivalent) position that the employee left when called up to state active duty.

38 USC 4313 (2) allows the employer to offer a comparable re-employment position rather than the same position to a guardsman called into federal active service--this provision exists in Idaho law for ING personnel called to state active duty.

Provisions relative to service-incurred disability rendering the member unable to perform the duties of the position vacated at the time of callup are relatively similar for members called into either state active service (prescribed by Title 46 Idaho Code) or federal active service (prescribed by 38 USC 4313 (3) & (4)).

Service Member's Remedies

I.C. 46-407 (d). Member may petition district court to compel employer to perform as required under Idaho law and to compensate member for lost wages and benefits, cost of the (court) action, and reasonable attorney's fees. Court is obliged to order a speedy hearing and advance it on the calendar.

38 USC 4321 specifies that service member may submit a notice to the Secretary of Labor (through the Veterans Employment and Training Service) concerning the circumstances of denial of rights or benefits, the Secretary (VETS) will investigate and attempt to resolve. If resolution is not successful, and if the employer is a private or state entity, the service member may request the Secretary (VETS) to refer the matter to the state attorney general who, if satisfied the member is entitled to the benefits or rights claimed, may appear on behalf of, or act as attorney for, the person on whose behalf the complaint is submitted. The court may require the employer to comply, to compensate the employee for loss of wages or benefits, and to pay liquidated damages if the court determines the employer's action was willful. No fees or court costs may be charged or taxed against any person claiming rights under this chapter. Persons who obtained private counsel may be awarded attorney fees.

Remedies available to a service member under 38 USC are comparable with Idaho Code Title 46 (compensation for lost wages and benefits, cost of the court action, and reasonable attorney fees). However the procedures differ: Idaho law requires the service member to petition the district court and to cover costs up front while USC 38 provides for official assistance in investigation, representation for the member without cost and the potential for liquidated damages if the employer's action is found by the court to be willful.