Montana Military Leave and Reemployment Rights

Two separate Montana schemes sit alongside the federal Uniformed Services Employment and Reemployment Rights Act. Paid leave for public employees. Section 10-1-1009 gives an employee of the state or of any political subdivision who is a member of the National Guard of Montana or any other state, or of the organized or unorganized reserve corps or military forces of the United States, and who has been an employee for at least six months, a leave of absence with pay at 120 hours in a calendar year or academic year. The full 120 hours is credited at once after six months of employment and again each successive year. It may not be charged against annual vacation time. Unused leave carries over but the total may not exceed 240 hours in any one year. This is a public sector benefit; Montana does not require private employers to pay for military leave. The Montana Military Service Employment Rights Act, at Title 10, chapter 1, part 10, is the state analogue to USERRA and it covers what USERRA does not: state military duty. State military duty means duty performed under Article VI, section 13 of the Montana Constitution, under the authority of the governor of any other state, or under 10-1-505 for state duty on special work, plus any recovery period certified by a physician for an illness or injury incurred on that duty. Federal Title 10 and Title 32 duty is separately defined and is where USERRA operates. The Montana Act binds any public or private employer providing employment in Montana, except the United States. The rights are substantial. A member ordered to state military duty is entitled to a leave of absence for its duration, and that leave may not be taken out of accrued sick, vacation or military leave unless the member wants it to be. On return the member is entitled to the same seniority, status, pay, health insurance, pension and other benefits they would have accrued had they not been absent. A member may drop off the employer's health plan and resume without a break in service, or stay on it paying no more than the regular employee share, except that if state duty qualifies them for the state plan as a Department of Military Affairs employee the employer may charge up to 102 percent. On the pension side, state duty may count as service for vesting and accrual, and if the member elects to make the employee contributions they would have made, the employer must pay the employer share. Now the condition that has no federal counterpart and that will surprise people. Section 10-1-1007(2)(e) lists the situations where the employer is not obliged to take the member back, and two of them are about disclosure: where the member did not inform the employer at the time of hire that they were a member of the state's organized militia or another state's National Guard, and where the member enlisted during the course of employment and did not inform the employer of the enlistment. A Montana Guard member who kept their service to themselves can lose the state reemployment right on that ground alone. The other exceptions are the familiar ones: no longer qualified for the duties, a temporary position that has expired, an untimely request to return, an employer whose circumstances have changed so significantly that continued employment cannot reasonably be expected, and undue hardship. Timely return is defined. For state duty of up to 30 days, the next regular shift after safe travel time plus 8 hours. For 30 to 180 days, within 14 days. For more than 180 days, within 90 days. Enforcement has two clocks that are far apart. A complaint to the Department of Labor and Industry must be filed within 15 days of discovering the employer's conduct. A district court lawsuit must be commenced within 3 years of when the claimant could reasonably have discovered the violation. The court may order compliance, compensate the member for losses, and, if the violation was willful, award treble that amount as liquidated and punitive damages, plus reasonable attorney fees to a prevailing complainant. The case is advanced on the court's calendar. Section 10-1-1005 is a standalone anti-discrimination rule: an employer may not deny employment, reemployment, reinstatement, retention, promotion or any benefit, or threaten negative consequences, because of a person's membership in, application for membership in, or potential application for membership in the National Guard of Montana or of any other state.