Every state has a National Guard – as does the Virgin Islands, Guam, Puerto Rico and the District of Columbia. The National Guard traces its roots to the colonial militias. Those militias were the first to fight the British and later the rebels. They bought time until the Army could be increased.
The militias were poorly funded and there were always questions of control in the field. They were abolished and the National Guard was created at the beginning of the 20th century. The national Guard did not fare much better than the militias – historically criticized for being part-time volunteers who are poorly trained, poorly funded, and under equipped. They comprised a big part of troops in World War I and World War II. National Guard units were among some of the first to meet the enemy in those wars. Again, they bought time while the Army was increased.
The role of the National Guard changed at the end of the 20th century when the Guard transformed from a strategic reserve to an operational reserve. The Illinois National Guard deployment of a Brigade Combat Team to Afghanistan in 2008-2009 is an example of the transformation. The question is no longer “if you’re going to deploy” the question is “where are you going to deploy.”
Guard members are citizen soldiers that deploy and then return to their communities, families and civilian employment. The Uniformed Servicemember Employment and Re-employment Rights Act is the law that protects the employment rights of Guard and Reserve members. USRERRA is considered to be the most comprehensive civil rights legislation enacted in the country. However, because only .5% of Americans serve in the Guard or Reserve, it was not tested in the courts – until after all the post-9/11 deployments in the Global War on Terror.
The state Employer Support of the Guard and Reserve Committee is charged with protecting the employment rights of Guard and Reserve members. Funded by the DOD, ESGR has existed since the early 1970s, and is staffed mostly by volunteers. The local ESGR committee exists to educate employers about the USERRA law and resolve servicemember employment complaints. Complaint resolution is handled through ESGR’s Ombudsman Program – designed to resolve complaints through an informal and non-binding mediation program.
The National Guard has adapted to the changes in the military’s use of the Guard and Reserve. However, ESGR has not adapted to the new role of the Guard. The Ombudsman Program has few specific criteria for who can be an Ombudsman – no background in law, HR, labor relations or collective bargaining is required. Further, the USERRA law is technical and dense – regularly confusing attorneys and HR professionals alike. Moreover, valid dispute resolution training takes from 25 to 40 hours. ESGR crams legal training and dispute resolution into three days.
Illinois ESGR is lucky to have some talented volunteers with legal, HR and collective bargaining backgrounds. An Illinois servicemember with an employment issue might get one of the skilled ESGR volunteers – or they may get one whose only exposure has been the substandard training. Our Guard and Reserve members leave their civilian employment to serve their country. If they have a workplace dispute due to their military service, is it fair to leave those disputes to a group of well-intentioned but poorly trained volunteers?
How to change the situation? Encourage those with the appropriate skill to volunteer as an Ombudsman at www.esgr.mil
Brian Clauss is the Executive Director of The John Marshall Law School Veterans Legal Support Center & Clinic in Chicago.