The National Guard has a dual status. It is a Reserve component of the Army, or, in the case of the Air National Guard, of the Air Force. Simultaneously, it is a State military force subject to call-up by the State Governor for duty not subject to Federal control, such as emergency duty in cases of floods or riots. National Guard members may perform service under either Federal or State authority, but only Federal National Guard service is covered by USERRA.
(a) National Guard service under Federal authority is protected by USERRA. Service under Federal authority includes active duty performed under Title 10 of the United States Code. Service under Federal authority also includes duty under Title 32 of the United States Code, such as active duty for training, inactive duty training, or full-time National Guard duty.
(b) National Guard service under authority of State law is not protected by USERRA. However, many States have laws protecting the civilian job rights of National Guard members who serve under State orders. Enforcement of those State laws is not covered by USERRA or these regulations.
Notes of Decisions
David Mueller v. City of Joliet, 943 F.3d 834 (7th Cir. 2019).
· cites it 3× “The district court judge noted that Mueller’s orders came from the State Adjutant General and looked to a Department of Labor regulation, 20 C.F.R. § 1002.57 (b), stating that: “National Guard service under authority of State law is not protected by USERRA.”
David Mueller v. City of Joliet (7th Cir. 2019).
· cites it 3× “The district court judge noted that Mueller’s orders came from the State Adjutant General and looked to a Department of Labor regulation, 20 C.F.R. § 1002.57 (b), stating that: “National Guard service under authority of State law is not protected by USERRA.”
Mueller v. City Of Joliet (N.D. Ill. 2018).
“Defendants - 7 - are correct: 20 C.F.R. § 1002.57 (b) issued by the United States Department of Labor states as follows: National Guard service under authority of State law is not protected by USERRA.”
Monaghan v. Cnty. of Gloucester (D.N.J. 2022).
“20 C.F.R. § 1002.57 (emphasis added). An employer “shall be considered to have engaged in actions prohibited” by USERRA “if the person’s membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating…”
Bjelobrk v. Suffolk Cnty. (E.D.N.Y 2025).
“3d at 206–07 (citing USERRA’s implementing regulation, 20 C.F.R. § 1002.57 , and explaining “USERRA’s clear distinction between National Guard service pursuant to the authority of federal versus state law”).”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.