USERRA: North Carolina
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Amie Flowers Carmack and Bridget A. Blinn-Spears, K&L Gates LLP
- North Carolina law gives employees the right to take unpaid leave due to service in the North Carolina National Guard and provides reinstatement rights to National Guard members of any state. See North Carolina Military Leave.
- An employer is prohibited from discriminating against military servicemembers. See Discrimination Against Military Members.
North Carolina Military Leave
In addition to leave rights conferred by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), North Carolina law provides protections to members of the military who need to take leaves of absence.
Employees who are members of the North Carolina National Guard and are called into state service by the governor have the right to take unpaid leave. An employer may not require such employees to use or exhaust his or her employer-provided vacation or other accrued leave. Employees may select whether they prefer to use paid leave or whether they prefer to take unpaid leave. +N.C. Gen. Stat. § 127A-111.
North Carolina law provides reemployment rights to members of the North Carolina National Guard or the National Guard of another state who are honorably released from state duty. State duty for members of the North Carolina National Guard means state active duty under an order of the governor. For National Guard members of other states, it means service under an order of that state's governor, which is similar to state active duty. +N.C. Gen. Stat. § 127A-201; N.C. Gen. Stat. § 127A-201.1, as added by +2017 Bill Text NC H.B. 487.
The employee must make written application for reemployment within the following time frames:
- If state duty lasted 30 days or fewer, the employee must apply no later than the first regularly scheduled work period that begins eight hours after the employee has safely traveled from the place of state service to the employee's residence.
- If state duty lasted more than 30 days, the employee must apply within 14 days of the employee's release from state duty.
- If the employee is hospitalized for or recovering from an illness or injury incurred in or aggravated during the performance of state duty, the employee must apply within the period of recovery, which may not exceed two years. However, the employee may request an extension from the Commissioner of Labor. The employer will be notified if an extension is granted.
An employer is required to reinstate the employee to his or her previous position or to a position of like seniority, status and salary, unless the employee is no longer qualified for the position or reinstatement would be unreasonable in light of the employer's circumstances. If the employee is no longer qualified for his or her previous position, the employer must place the employee in another position for which he or she is qualified, and that will give the employee appropriate seniority, status and salary, unless the employer's circumstances make such placement unreasonable.
The law indicates that an employer must reinstate an employee within five days of the employee's release from state duty. This provision conflicts with the time frames allowed for an employee to apply for reinstatement. However, an employer should take note of the requirement and reinstate qualifying employees promptly upon receiving their application for reemployment.
In order to be considered qualified for the position, the employee must have the ability to perform the essential tasks of the job.
Seniority is defined as longevity in employment, together with any benefits of employment that accrue with or are determined by longevity in employment.
A benefit of employment is defined as a term, condition or privilege of employment, including any wages, salary, advantage, profit, privilege, gain, status, account or interest that accrues under an employment contract or agreement or an employer policy, plan or practice. It also includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations and the opportunity to select work hours or employment location.
N.C. Gen. Stat. § 127A-201.1, as added by +2017 Bill Text NC H.B. 487.
Discrimination Against Military Members
An employer is prohibited from:
- Discriminating against any individual with respect to application for employment, employment, position or status due to membership or service in the North Carolina or US military forces. +N.C. Gen. Stat. § 127B-11;
- Terminating any employee due to his or her performance of any emergency military duty as a result of being an officer, a warrant officer or an enlisted member of the North Carolina or US military forces. +N.C. Gen. Stat. § 127B-14; and
- Discriminating against members of the North Carolina National Guard or the National Guard of another state who perform, have performed, apply to perform or have an obligation to perform National Guard service. An employer may not deny employment, reemployment, continuation in employment, promotions or any benefits of employment based upon that membership, application for membership, performance of service, application for service or obligation. +N.C. Gen. Stat. § 127A-202.1.
Employers should maintain documentation of any impending military leaves. If an employee gives oral notice of an impending military leave, an employer should document such notice and place it in the employee's file. HR personnel should inform all managers/supervisors that they must forward any written notice, and communicate any oral notice, of an employee's pending military leave to the HR department. Employers should remember, however, that under the federal USERRA law, written or oral notice of military leave is sufficient to meet the employee's obligation to inform the employer of the need for military leave.
Employers should also maintain documentation for all employment actions taken against an employee on military-related leave to the same extent as it maintains documentation of those actions for other employees. Because USERRA and military leave lawsuits can arise as a result of alleged discrimination based on military service or enlistment in the military, employers should have documentation to demonstrate that any action it has taken is not related to or the result of an employee's service in the military.
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