This guest post was authored by Timothy Owen
When Johnny comes marching home again,
We’ll give him a hearty welcome then
This is part 1 of a 2-part series. Part 1 discusses basic aspects of military leave law. Part 2 focuses on the “escalator principle” and selecting the right position for a returning veteran.
Federal, state, and even local laws guarantee returning veterans job reinstatement and other employment rights and benefits. In most instances, the law spells out the position to which a qualifying veteran should be reinstated, making the employer’s decision relatively easy. There are job classifications, though, that do not lend themselves to an easy determination regarding reinstatement, typically classifications where advancement is discretionary and depends on a formal evaluation of job performance, such as law enforcement.
The public policy behind military leave law seeks to ensure that a veteran returning from military duty is not disadvantaged in the civilian workplace as a result of taking military leave. This is accomplished by guaranteeing reemployment for the veteran. The law covers persons who perform duty, voluntarily or involuntarily, in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services.
The federal military leave statute, USERRA, covers nearly all employees, including part-time and probationary employees, and applies to virtually all U.S. employers, regardless of size. An employer must reinstate service members returning from service in the uniformed services who meet five criteria:
- The person was absent because of military service;
- The person gave advance notice of taking military leave;
- The person took no more than 5 years of military service leave, cumulatively, while employed by the employer;
- The person was honorably released from military service; and
- The person reported back to the civilian job in a timely manner.
Seniority, Rights, and Benefits: Generally, reemployed service members are entitled to the seniority, and all rights and benefits based on seniority, that they would have attained with reasonable certainty had they remained continuously employed. Service members must be treated as if they are on a leave of absence, and are entitled to rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence.
Salary: Under California’s Military & Veterans Code, public employees employed for a period of “not less than one year” are entitled to pay for the first 30 days of military leave. A National Guard member on active duty is entitled to receive his or her salary for the first 30 days regardless of his or her length of service with the public employer. Private employees are entitled to a temporary leave of absence not to exceed 17 days, without pay, for military training.
Pension Rights: A returning veteran is treated as not having incurred a break in service with the employer maintaining a pension plan. The employer is liable for funding plan contributions.
Health Coverage: An employee on military leave for less than 31 days may not be required to pay more than the employee’s share, if any, for health insurance coverage. For longer periods, the employer is not required to provide health insurance benefits, but must give the employee the option to continue coverage.
Sick Leave and Vacation Accrual: Subject to an employer’s own policies, public employees on active duty are not entitled to sick leave or vacation accrual. Under certain conditions, employees on temporary military leave continue to accrue the same vacation, sick leave, and holiday privileges for up to a maximum period of 180 days. There are special rules for National Guard members.
The next installment in this series will address reinstatement of a returning veteran.