Frequently Asked Questions Reference Military Leave

Q: What if an employee volunteers for military service?

A: USERRA does not distinguish between volunteers and those ordered to perform military service. Employees are protected regardless of whether they volunteered or were ordered to active duty.

Q: Must an employer pay an employee while he or she is on active duty?

A: USERRA does not require employers to pay employees while on military leave. Some employers voluntarily have policies that make up the difference between military pay and allowances and an employee”s regular pay. Employers should review such policies to ensure that the extent of these obligations is consistent with current business objectives.

Q: Can an employer require an employee to use earned vacation time while performing military service?

A: No. Employees are entitled use to earned vacation while on leave but generally may not be required to do so.

Q: What is the “escalator principle?”

A: Employers must treat returning service members as if they had remained continuously employed for purposes of the position as well as pay and benefits to which they return. For example, if similarly employed individuals who joined the company in 1996 currently earn $15 per hour, then a similarly situated returning service member who joined the company in 1996 should be paid $15 per hour even if he or she had been on active duty for extended periods during that time. As another example, if an apprentice electrician left the company for active military duty in 1999 and returned in 2001, the employee might be entitled to a position as a journeyman electrician.

Q: What if the employee was serving in the National Guard?

A: National Guard members sometimes perform federal service (e.g., during annual training) and sometimes perform state service (e.g., during some disasters). USERRA only applies to National Guard members performing federal service, but many state laws afford similar protection to individuals performing state service. To determine compliance obligations under these circumstances, employers should obtain a copy of the employee”s orders and consult with an attorney.

Q: Is there a limit on the length of military service under the USERRA protections?

A: Under USERRA, employees are only entitled to protection during cumulative periods of military leave of up to five years, but there are many exceptions to this general limitation. For example, leave time for active duty by order of a Presidential declaration would normally not count as part of the five-year period.

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Tim Dimoff, Speaker, National Expert, Author: