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  1. #1
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    Default Guard/Reserves AND Civil Service

    Is there a reg that says you cannot be a member of a reserve component of the armed forces and a civil service firefighter? I heard that one existed and it was lifted after the troop shortage caused by the GWOT. If anyone has any references on this please hook me up.


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    Quote Originally Posted by dukduk View Post
    Is there a reg that says you cannot be a member of a reserve component of the armed forces and a civil service firefighter? I heard that one existed and it was lifted after the troop shortage caused by the GWOT. If anyone has any references on this please hook me up.

    i don't know of any reg that states that. the reserves acutally have an ART (air reserve technician) program where you will be a reserve working at job X and while your not on your weekend your filling the civil service spot at that same job. So, everyday you wear a civilian uniform then 1 weekend you come in in your BDUs/ACUs.

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    No such rule. All Guard/reserves are protected by the USERRA law. Look up the law, and check out the USERRA review here:

    http://www.roa.org/site/PageServer?p...review_archive

    Some places may give you additional benefits that are not required, and have restrictions on those.

    For example-my department's contract provides up to 10 days paid military leave annually, but only if the member was in the Guard/Reserve prior to employment. Those joining after employment receive all USERRA protections, but not the paid leave.

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    Yes, there is such an act. I don't know how it would relate to actual "law" There are some civil service (mostly federal) that have some positions that are considered "mission critical". If memory serves me right, if employed by one of these agency's, you are not permitted to be a member of the armed forces. Don't quote me 100% on this; hopefully someone else can fill in any gaps I may have left out.
    A Fire Chief has ONLY 1 JOB and that's to take care of his fireman. EVERYTHING else falls under this.

  5. #5
    Forum Member gunnyv's Avatar
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    I wrote a paper for my Labor Law class on the USERRA law.

    Thanks to the Reserve Officer's Assoc (linked above):

    Federal employees:
    "DoD Directive 12.7, "Screening the Ready Reserve," is a guideline in which all federal agencies must make a request to DoD to ask that an employee, whom the agency believes is key under the definitions found at 32 C.F.R. Part 44, be transferred to the Standby Reserve as defined in 10 U.S. Code 10153. It is clear that the provisions of USERRA found at 38 U.S. Code Chapter 43 apply to any federal employee who hasnít actually been transferred to the Standby Reserve by DoD.

    DoD Directive 12.7 also refers to the process by which an agency may appeal a DoD denial to move an individual to Standby Reserve. That process is found in 44 C.F.R. Part 333, which authorizes the director of the Federal Emergency Management Agency to adjudicate any differences between DoD and other federal agencies.

    I would also like to point out that 10 U.S. Code 10146(c) states that a member of the U.S. Army National Guard or the Air National Guard may be transferred to the Standby Reserve only with the consent of the governor or other appropriate authority of the state.
    Until and unless DoD transfers you to the Standby Reserve, the FAA must recognize your military leave status so long as you are on bona fide military orders."

    Even elected officials can serve up to 270 days-they must decline orders longer than this. This situation is specifically addressed during mobilization screening.

    Local Gov't:
    "May We Forbid Current Employees Permission to Join Reserves?

    By CAPT Samuel F. Wright, JAGC, USNR*

    Q: I am the city attorney here in the Midwest. I came upon your Law Review columns about the Uniformed Services Employment and Reemployment Rights Act (USERRA) while doing legal research on the Internet. The city has a current employee, a police officer, who is considering applying to join the Army Reserve. The city has a policy that forbids outside employment that interferes with city duties. If this police officer were to join the Army Reserve, he would be required to perform weekend drills and active duty for training (and maybe active duty in a mobilization) that would interfere with his city duties. Our police chief has threatened to fire this officer if he joins the Army Reserve. Does USERRA grant rights to a current employee who is not a Reservist when hired but applies to become one after becoming an employee?

    A: Yes. I invite your attention to section 4311(a) of USERRA, which provides: "A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation." [38 U.S.C. 4311(a)(emphasis supplied)].

    The pertinent legislative history is as follows: "Current law protects Reserve and National Guard personnel from termination from their civilian employment or other forms of discrimination based on their military obligations. Section 4311(a) would reenact the current prohibition against discrimination which includes discrimination against applicants for employment [see Beattie v. Trump Shuttle, Inc., 758 F. Supp. 30 (D.D.C. 1991)], current employees who are active or inactive members of Reserve or National Guard units, current employees who seek to join Reserve or National Guard units [see Boyle v. Burke, 925 F.2d 497 (1st Cir. 1991)], or employees who have a military obligation in the future, such as a person who enlists in the Delayed Entry Program which does not require leaving the job for several months. [See Trulson v. Trane Co., 738 F.2d 770, 775 (7th Cir. 1984).] The Committee intends that these anti-discrimination provisions be broadly construed and strictly enforced." House Report No. 103-65, 1994 United States Code Congressional and Administrative News 2449, 2456.

    I also invite your attention to Kolkhorst v. Tilghman, 897 F.2d 1282 (4th Cir. 1990), cert. denied, 502 U.S. 1029 (1992). The city of Baltimore had a rule limiting to 100 the number of police officers who could be members of Reserve Components at any one time. The city enforced the rule by means of a permission requirement. Police officers requesting permission to join a Reserve Component were made to wait many years, until some of the 100 police officers retired from the police force, retired from a Reserve Component, quit, died, or whatever. When finally given permission to join a Reserve Component, the police officer often was unable to join, because of military rules about maximum age and maximum years away from active duty.

    The court held that the city of Baltimoreís quota rule violated the re-employment statute. The court awarded damages based on what these police officers would have earned from the Reserve Component (including retirement benefits) but for the cityís unlawful rule. This case ended up costing the city of Baltimore many millions of dollars, so my advice to your city is "donít go there."

    I also invite your attention to Article VI, clause 2 of the U.S. Constitution, commonly called the "Supremacy Clause," and to 38 U.S.C. 4302(b), which provides that USERRA overrides conflicting state laws, local ordinances, collective bargaining agreements, employer policies, etc. Your cityís "no outside employment" rule is inconsistent with the Supremacy Clause. See Peel v. Florida Department of Transportation, 600 F.2d 1070, 1073-74 (5th Cir. 1979); Cronin v. Police Department of the City of New York, 675 F. Supp. 847, 853 (S.D.N.Y. 1987); Fitz v. Board of Education of the Port Huron Area Schools, 662 F. Supp. 1011, 1014-15 (E.D. Mich. 1985), affirmed, 802 F.2d 457 (6th Cir. 1986); Mazak v. Florida Department of Administration, 113 L.R.R.M. 3217 (N.D. Fla. 1983). ROA"

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    Quote Originally Posted by JTFIRE80 View Post
    Yes, there is such an act. I don't know how it would relate to actual "law" There are some civil service (mostly federal) that have some positions that are considered "mission critical". If memory serves me right, if employed by one of these agency's, you are not permitted to be a member of the armed forces. Don't quote me 100% on this; hopefully someone else can fill in any gaps I may have left out.
    anyone have more on this?

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    JTFire is right. I had this come into play with a job I was looking at with the Air Force. It was a fire protection position, and it specifically stated that you cannot be a member of the Guard or Reserve and hold this position at the same time. In the job description in quoted the law allowing this, but that was a few months ago.

    One member of my unit became a Deputy US Marshal and the same thing applied to him. He had to get out of the Army Reserve. The Federal Government can get away with it for certain positions. Everyone else falls under what gunny has written. I would ask someone at the personnel office to be sure what the rule is (but, they may not know either-they're funny that way).

    Actually, I THINK, it's covered by gunny's statement here - 32 C.F.R. Part 44
    Last edited by Tiredoldman; 08-14-2008 at 12:49 PM.

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    On a side note, thanks for posting that information gunny, I have a feeling I may be needing it soon!

  9. #9
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    Quote Originally Posted by Tiredoldman View Post
    On a side note, thanks for posting that information gunny, I have a feeling I may be needing it soon!
    I've got pdf files of the USERRA law, the Federal Register Q&A for it, and some other stuff if you need it. PM me with an address to send it to. I'm deploying to OIF next week though, so let me know soon.

    Best of luck and I hope you don't need it!

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    Default Soldiers and Sailors Act

    I would also look into the Soldiers and Sailors Act,,,,
    I work as a Federal FF now and a few months ago I was looking to joining
    the Reserve.. I was told i could not join...
    I have a Reserve Air Force FF that just got hired, Who is still in ,,I talked to him about it, He advised me they changed the act... Don't remember off hand what the term was,,, But he said because the (WAR) was going on and they raised the age limit in some arm forces they being your employer have no choice....

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