South Carolina Reemployment Rights After State Duty

USERRA covers federal service. Article 18 of Chapter 1, Title 25 covers the gap USERRA leaves: duty in state service, ordered by the Governor, which is not federal uniformed service and so is outside the federal statute. Section 25-1-2310 opens it: any member of the South Carolina National Guard who at the direction of the Governor enters state duty is entitled, on honorable release, to the reemployment rights in the article. Section 25-1-2340 extends the same rights to a member of the South Carolina State Guard who enters state duty at the direction of the Governor or by his authority and is honorably released. Section 25-1-2350, added by 2015 Act No. 16, closes the cross-border case: the article also applies to "a person who is employed in South Carolina but is a member of another state's national or state guard" who enters state duty at the direction of that state's Governor and is honorably released. A South Carolina employee called up by North Carolina or Georgia is protected here. Section 25-1-2320 is the mechanics, and the deadline is the trap. "Upon release from state duty, the employee shall make written application to his previous employer for reemployment within five days of his release from duty or from hospitalization continuing after release." Five days. Written. USERRA gives a member returning from service of thirty days or less until the beginning of the first regularly scheduled work period after safe travel home plus eight hours, and for longer service fourteen or ninety days depending on length. This article gives five days for any length of state duty. A member returning from a month of hurricane response who takes a week to file is outside the words of the section. What the employer owes, on a timely application: if the employee is still qualified for the previous employment, restoration "to his previous position or to a position of like seniority, status and salary, unless the employer's circumstances now make the restoration unreasonable." If the employee is no longer qualified, placement "in another position, for which he is qualified, and which will give him appropriate seniority, status and salary", on the same reasonableness limit. "Unless the employer's circumstances now make the restoration unreasonable" is the escape clause and it is looser than USERRA's impossibility and undue hardship standards. The article does not define it. Section 25-1-2330 supplies the remedy, and it is a real one: the employee may file a motion, petition or other appropriate pleading in the circuit court of the county where the employer's place of business is located, requiring the employer to comply and "to compensate such employee for any loss of wages or benefits." No administrative exhaustion, no agency, no complaint process. Circuit court directly. One further protection sits outside the article and is easy to miss. Section 25-1-2190 makes it an offence to interfere with the employment of, or with the practice of a trade by, a Guard member. That is a criminal provision, not a civil one, and it reaches conduct short of a refusal to reinstate. What the article does not do: it does not carry the health coverage continuation, the pension accrual rules, the escalator principle or the anti-discrimination provisions USERRA carries. For federal service, use USERRA. This article is for the Governor's own call-ups.