Tennessee State Guard leave request . . .
dougsmith
2 Posts
We have a situation where one of our employees has requested time off for service in the Tennessee State Guard. I know that participation in any component of the US armed forces and reserves are protected but what about this State Guard. I found the info below from LexisNexis but it does not specifically answer my question. Do we have to provide leave to this person and if so what do we need to request to verify the need for the leave?
Thanks!
Doug
Tennessee Code : TITLE 8 PUBLIC OFFICERS AND EMPLOYEES : CHAPTER 33 EMPLOYEES IN MILITARY SERVICE : 8-33-109. Reservists' leave of absence.
All officers and employees of this state, or any department or agency thereof, or of any county, municipality, school district, or other political subdivision, and all other public employees of this state who are, or may become, members of any reserve component of the armed forces of the United States, including members of the Tennessee army and air national guard, shall be entitled to leave of absence from their respective duties, without loss of time, pay, regular leave or vacation, impairment of efficiency rating, or any other rights or benefits to which otherwise entitled, for all periods of military service during which they are engaged in the performance of duty or training in the service of this state, or of the United States, under competent orders; provided, that an officer or employee while on such leave shall be paid salary or compensation for a period, or periods, not exceeding fifteen (15) working days in any one (1) calendar year, plus such additional days as may result from any call to active state duty pursuant to § 58-1-106. The military leave herein provided shall be unaffected by date of employment or length of service and shall have no effect on other leaves provided by law, regulation, policy or practice.
Thanks!
Doug
Tennessee Code : TITLE 8 PUBLIC OFFICERS AND EMPLOYEES : CHAPTER 33 EMPLOYEES IN MILITARY SERVICE : 8-33-109. Reservists' leave of absence.
All officers and employees of this state, or any department or agency thereof, or of any county, municipality, school district, or other political subdivision, and all other public employees of this state who are, or may become, members of any reserve component of the armed forces of the United States, including members of the Tennessee army and air national guard, shall be entitled to leave of absence from their respective duties, without loss of time, pay, regular leave or vacation, impairment of efficiency rating, or any other rights or benefits to which otherwise entitled, for all periods of military service during which they are engaged in the performance of duty or training in the service of this state, or of the United States, under competent orders; provided, that an officer or employee while on such leave shall be paid salary or compensation for a period, or periods, not exceeding fifteen (15) working days in any one (1) calendar year, plus such additional days as may result from any call to active state duty pursuant to § 58-1-106. The military leave herein provided shall be unaffected by date of employment or length of service and shall have no effect on other leaves provided by law, regulation, policy or practice.
Comments
John Phillips, Editor
Tennessee Employment Law Letter
1) Federal Law:
Uniformed Services Employment and Re-employment Rights Act does not apply. The statute only applies to the U.S. Armed Services, Army National Guard, Air National Guard, and the commissioned corps of the Public Health Service. TCA s. 58-1-402 states that the Tennessee State Guard is a separate and distinct entity from the National Guard.
2) State Law:
Notwithstanding TCA s. 58-1-402's pronouncement that the State Guard is distinct from the National Guard, TCA s. 58-1-409 states that "all rights, privileges and immunities conferred by [State law] upon [members] of the National Guard are hereby conferred upon [members] of the State Guard." As such, although the following two statutes do not, on their face, apply to the State Guard, they more than likely apply to State Guardsmen nonetheless because of the language of TCA s. 58-1-409.
(a) TCA s. 8-33-109 states that public employees will receive up to 15 days of paid leave (more days if called up by the Governor) for service in the U.S. Armed Forces or the National Guard.
(b) TCA s. 58-1-604 states that it is a Class E Felony to terminate an employee because of his absence from work due to his attendance of any prescribed drill, including annual field training, of the National Guard.
It appears that the employee is entitled to leave under state law. If you are a public employer, the employee should be paid for at least the first 15 days of the leave. If you are a private employer, it does not appear that the statutes mentioned above would require any payment for the leave.
I hope this is helpful. Please let John Phillips or me know if you have any questions.
In my research, I did not find the "all rights, privileges and immunities conferred by upon of the National Guard are hereby conferred upon of the State Guard." portion.
Am I safe in assuming that we can request a copy of his orders or other verification that he has been activated?
Thanks again for the help!!
Doug Smith