Taking Military Leave

The federal USERRA and state laws provide employment protection to workers who take time off to serve in the military.

The federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides strong employment protections for members of the National Guard and Reserves who are called to serve in the military.

Federal Protections: USERRA

USERRA (38 U.S.C. § § 4301 and following) prohibits discrimination against those in the military, requires employers to provide time off for service, and provides additional job protections.This federal law applies to all private employers, regardless of size.

Discrimination Prohibited

USERRA prohibits employers from taking any negative job action -- such as demotion or firing -- against an employee because he or she is a member of the armed forces or reserves.

Right to Reinstatement

USERRA also entitles an employee who takes time off to serve in the armed forces to reinstatement, if the employee meets all of these conditions:

  • The employee must have given notice, before taking leave, that the leave was for military service.
  • The employee must have spent no more than five years on leave for military service (with some exceptions).
  • The employee must have been released from military service under honorable conditions.
  • The employee must report back or apply for reinstatement within specified time limits (these limits vary depending on the length of the employee's leave).

The employer must return the employee to the position he or she would have held if continuously employed throughout the leave, as long as the employee is otherwise qualified for that job. This means that you are entitled to more than simple reinstatement to your old position; you also have the right to receive any promotions, increased pay, or additional job responsibilities you would have gotten had you never taken leave -- but only if you are qualified to do the job. If you are not qualified, your employer must try to get you qualified (by providing training, for example).

In addition, you cannot be fired without cause for up to one year after you are reinstated (the exact length of this protection depends on the length of your military service), regardless of your employer's policies or practices.

Right to Benefits and Seniority

You are also entitled to the benefits and seniority you would have earned had you been continuously employed. For purposes of your employer's benefits plans and leave policies, the time you spent on leave must be counted as time worked.

Leave for family members is also legally required. If an employee's family member is called to active military duty or is injured during military duty, recent changes to federal law allow the employee to take time off from work to handle issues relating to the family member's service or to care for the injured servicemember. For more information, see Nolo's article, Military Family Leave for Employees.

Employers are required to post notices informing employees of their rights under USERRA. To get even more information, check out the website of the Department of Labor, at www.dol.gov. For lots of free information on the law, see the website of Employer Support of the Guard and Reserve, at www.esgr.org.

State Protections

In addition to these federal protections, almost every state has a law prohibiting discrimination against those in the state's militia or National Guard -- and some of these laws provide protections similar to those available under USERRA.

In addition, most state laws require employers to grant leave to employees for certain types of military service. Some states require leave only for those employees called to active duty; other states require leave for training as well.

Employees who take military leave are not generally entitled to pay, although many private employers choose to pay at least a portion of the employee's salary for time spent on leave. To find out about your state's law, contact your state department of labor.

For More Information

For a complete guide to workplace laws, see Your Rights in the Workplace, by Barbara Repa (Nolo).

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