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TT&S Weekly

TT&S Weekly (11/9/20)

Topic of the Week  Military Leave

As a member of the United States Uniformed Services, you are entitled to special workplace protections under federal law. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service. USERRA provides protections to members of the Uniformed Services who must leave their civilian employment for a period of time due to activation of military service. USERRA distinguishes military leave from other types of personal leave and thus military leave is governed under federal standards rather than employer based policies.

1. How often can I take military leave? Is there a limit to the amount of leave time that I can take?

USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service. You can take leave as often as you need if due to activation to military service, subject to a five-year cumulative limit per employer, in order to and still retain reemployment rights with that employer. If you get a different job with a new employer, you get begin that job with a new 5-year limit.
There are some important exceptions to the 5-year limit:
  • If you are unable to obtain release or if service is required to complete an initial period of obligated service, that time of service is exempt.
  • For example: If an initial enlistment lasts more than 5 years, such as for nuclear power training, the employee retains reinstatement rights with the employer.
  • If an employee was hospitalized for or is convalescing from an illness or injury incurred in, or aggravated during military service, the limit may be extended up to an additional 2 years.
  • Drills (inactive duty training), annual training, involuntary active duty extensions (including training certified as necessary by your service), and recalls due to a war or national emergency are not counted in the 5-year cumulative total.
  • Service performed in another job to mitigate economic harm where your employer is violating its employment or reemployment obligations to you.
  • If you were employed by the same employer both before and after USERRA's effective date of December 12, 1994, duty that you performed under the previous law will count against the USERRA 5-year limit only if that duty counted against the prior law's service limitation.

2. What are valid reasons for an employer to deny reemployment?

Assuming you are otherwise eligible for USERRA protection, an employer is not required to reemploy you if:
  • the employer's circumstances have so changed as to make such reemployment impossible or unreasonable;
  • in the case of a person entitled to reemployment that would impose an undue hardship on the employer; or
  • the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.
For example, if your employer engaged in a mass layoff, or eliminated your job function completely while you were away, it would not be required to reemploy you.
Your employer can also deny reemployment if you are no longer entitled to the law's protections, such as after you receive a dishonorable discharge or failed to give your employer notice prior to leaving the job for military training or service.

3. Does USERRA require my employer to pay me during my leave?

No. USERRA does not require an employer to pay you for time not worked due to service. Another Federal law (5 U.S.C. 6323) gives federal civilian employees the right to 120 hours (15 days) per fiscal year of paid military leave. About 40 states have similar laws for state and local government employees. Of course, your employer may voluntarily pay you or choose to supplement the difference between your military and civilian salary, but this is not legally required.

If an employee is exempt from the Fair Labor Standards Act (FLSA) overtime rules, the employer is not permitted to make a deduction for a part of a pay period missed because of temporary military leave. This is an FLSA requirement, not a USERRA requirement.

Thought of the Week

"On this Veterans Day, let us remember the service of our veterans, and let us renew our national promise to fulfill our sacred obligations to our veterans and their families who have sacrificed so much so that we can live free"

–Dan Lipinski

Weekly Comic by Jerry King

Weekly Comic by Jerry King

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    from Bureau of Labor Statistics

    Employment Situation of Veterans

    Highlights from the 2019 data:

    • The unemployment rate for male veterans declined to 3.0 percent in 2019, and the rate for female veterans (3.7 percent) changed little over the year. The unemployment rate for male veterans was not statistically different from the rate for female veterans.
    • Among the 284,000 unemployed veterans in 2019, 56 percent were ages 25 to 54, 39 percent were age 55 and over, and 5 percent were ages 18 to 24.
    • Veterans with a service-connected disability had an unemployment rate of 4.8 percent in August 2019, not statistically different from the rate for veterans with no disability (3.7 percent).
    • In August 2019, 31 percent of employed veterans with a service-connected disability worked in the public sector, compared with 17 percent of veterans with no disability and 13 percent of nonveterans.