How Much Discrimination Did Guardsmen Face from Civilian Employers During the Pandemic?

Despite concerns about companies growing weary of regularly losing employees to National Guard duty, guardsmen reported fewer cases of problems with their civilian employers during the pandemic than other recent years, according to data obtained by Military.com.

The data comes from the Employer Support of the Guard and Reserve, or ESGR, a Defense Department program that tracks issues guardsmen have with employers, including retaliation for taking time off for military duty, which in some cases is a crime. 

In 2020, ESGR worked on 700 cases for Air and Army National Guard troops with employer issues, according to the data, a slight decrease from 2019 and 2018, which had 733 and 858 cases, respectively.  

Although the National Guard has been constantly deployed at home and abroad during the pandemic -- in support of relief efforts while also juggling other domestic missions such as securing the Capitol, putting out wildfires and overseas operations -- the data suggests there’s little evidence that the large number of missions have hurt relations with civilian employers or retention in the force. 

Even now, at least 20,230 Guard troops are still on pandemic-related missions while just 2,500 troops are serving in Iraq and 900 in Syria, including guardsmen, making the case the Guard has become one of the most heavily utilized parts of the military. 

Overall, 18,500 guardsmen are supporting overseas missions, including in Europe and the horn of Africa. 

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The data for 2021 is incomplete. ESGR has opened 366 cases so far, which is on track to be on par with previous non-pandemic years. 

It is unclear whether issues could spike come Sept. 30 when President Joe Biden plans to suspend federal support for the COVID-19 response mission, and when many guardsmen likely will return to their civilian careers. That data also could be skewed if many guardsmen were laid off anyway due to the economic fallout many businesses faced. 

“A lot of civilian employers were letting people go, so you just might not have a handle on the full situation,” John Goheen, a spokesman for the National Guard Association of the United States, told Military.com. 

But despite the burden on civilian businesses losing their employees to military service, Goheen said there was probably a clear understanding, given the pandemic was an issue employers saw for themselves and could relate to. 

“Unlike Afghanistan and Iraq, this is one of those situations where it’s right in the employer’s faces,’’ Goheen said. “It’s in their backyards, not in some far-away land.’’ 

Federal law has strong protections for guardsmen on federal missions, whether that’s deployed abroad to somewhere like Iraq, or on the federally backed pandemic or Capitol Hill security missions. Employers must allow guardsmen to return to work and not allow the time away for military duty to interrupt any accrual of benefits or promotions. Some employers continue to pay guardsmen while they’re away, although there’s no law mandating continued payments. However, employees cannot be forced to use vacation time during military service. 

Guardsmen also can be activated under state orders. This is usually done for domestic disturbances and natural disasters. In some cases, guardsmen are deploying to the border under state orders. While federal law is strict, there are few broad protections for state-activated troops. 

“[They’re] protected by the Uniformed Services Employment and Reemployment Rights Act when they are mobilized under federal orders,” Marianne Downs, an ESGR spokesperson, said in a statement to Military.com. “When a National Guard Service member is mobilized under State Active Duty, they have USERRA protections in limited circumstances. Otherwise their protections are determined at the state level.” 

Downs said most cases are handled at the lowest level possible, usually through an informal notice to the employer about legal protections guardsmen have, saying that many issues stem from small businesses who simply do not know the law. Roughly 78% of cases were resolved that way in 2020. In many cases, according to Downs, it was a matter of the service member not properly communicating with the employer. 

However, cases can escalate to the Department of Labor and then the Department of Justice. It’s unclear how many cases of military discrimination have ended up in a court. Once ESGR cannot solve an issue between a service member and employer, the case is escalated to the Department of Labor who may issue formal warnings to an employer. If an issue still isn’t resolved, the case then will be taken by the Department of Justice for a criminal inquiry and potential lawsuit. 

In one case in May, Cpt. Christopher Robbins, of the Indiana Army National Guard, reached a settlement with Ashley HomeStore following allegations that the company violated federal law by not offering to reemploy him when he returned from a month-long training event in the summer of 2017, according to the Justice Department. 

“The Justice Department expects employers to fully comply with their reemployment obligations under the law,” said Acting U.S. Attorney John Childress of the Southern District of Indiana in a May statement. “Where employers fall short in doing so, we will aggressively vindicate the reemployment rights of servicemembers.”

Here are the top five reasons troops seek out assistance from ESGR:

• 21.1% -- Reinstating the reservist or guardsmen to their civilian job after leaving for the military and with the seniority and pay they would have held if they were not absent
• 20.8% -- Issues related to time off in advance of service, verification of service and inquiries into types of protected military service
• 12.1% -- Employees being denied rights or benefits
• 6.1% -- Employers requiring an employee to use vacation or similar leave during military service.
• 5.4% -- Issues related to benefits such as vacation, bonuses, and holiday pay accrual during service.

Guardsmen also are choosing to stay in the military, despite some fearing the force has been stretched too thin. As of June, the Guard achieved 119% of its retention goals for the year, meaning more troops extended their service contracts than the force targeted. 

One side effect is that the Guard suspended reenlistment incentives for the rest of the year. These are usually bonuses ranging from $3,000 to $20,000, depending on the service member’s rank and job, if they commit to more years in uniform. 

Yet, the strong reliance on the Guard at home and abroad has spurred concerns of the long-term impact on the force. Army Secretary Christine Wormuth told lawmakers in May that the increasing use of the Guard could prove too much. 

“I am concerned about the possibility of unreasonable demands [on] the Guard,” she said. “I think we have to be mindful of the fact they are balancing their service with civilian careers and frankly from a recruiting and retention standpoint if we are overly taxing the Guard or the Reserves that can be damaging.” 

-- Steve Beynon can be reached at Steve.Beynon@military.com. Follow him on Twitter @StevenBeynon.

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