California employees who are also members of the U.S. military are entitled to having the same leave rights as any other employee and even more. CA and Federal law try to protect the employee’s job when he/she takes a military leave of absence. On this webpage, we’ll discuss the following topics to help you understand the laws concerning a military leave of absence from a civilian job:
- Leave Laws for Military Members
- California Military Leave of Absence Laws for Spouses of Military Members
- Is Military Leave Paid or Unpaid?
- Wrongful Termination or Discrimination Due to Military Leave
Military Leave Laws
The Military and Veterans Code § 389-399.5 outlines the laws for temporary leave from civilian employment, due to a military-related duty. Both Federal and California state law provides protection for employees regarding a military leave of absence, not just for the military member but also for their family members. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is the federal law, while the Family Military Leave Act is a California state law.
USERRA – Federal Law
Whether an individual voluntarily or involuntarily takes leave to undertake military services, the USERRA protects his/her job rights.
USERRA is applicable to all employers no matter how many people are employed and all employees are eligible no matter how many hours they have worked for their employer. Foreign employers who are doing business in the United States and American companies doing business in other countries are also obligated to follow this federal law. Whether in a time of peace or war, the types of military service covered by USERRA are active components of the:
- Guard and Reserve military personnel
- Armed Forces
- National Disaster Medical System
- Commissioned Corps of the Public Health Service
Below are the key functions of the USERRA:
Right to reemployment and Position– When you return from the military service, you are entitled to come back to your civilian job (or similar/comparable job), as long as you:
- Give your employer advance notice (written or verbal) of your service
- Have five years or less of cumulative service in the uniformed services while with that employer
- Return to work or apply for reemployment in a timely manner, after you are done with your service
- Do not have a disqualifying discharge (dishonorable discharge)
Prevent discrimination – Employers are prevented from discriminating against an employee who requests, takes or even supports a military leave of absence.
Prevent firing without cause – In addition to being protected from discrimination, employees who take military leave of absence are also protected from retaliation. Employers cannot fire an employee because of military leave.
Because of the nature of active military duties, advance notice is not required, unlike civilian leave laws like FMLA or CFRA; however, the DoD highly recommends an advance notice of 30 days when it’s possible. Under this federal leave law, employers are required to allow employees unpaid leaves of absence to provide military service, up to a maximum of five years.
USERRA – Expanded California Law
The federal law is meant to be a floor on rights for employees leaving their civilian jobs to perform military services. States like California can add to the federal law, but it cannot offer anything less than what the federal law provides. Under California Government Code §19775, individuals who are employed in California are entitled to up to 30 days of paid military leave for active duty (including active duty training). The paid military training does not cover leave for inactive duty training, such as drills.
California Family Military Leave Act for Spouses of Military Members
This state law was enacted to provide unpaid leave for eligible employees who are married to deployed military service men or women. Eligible employees can take a family military leave of absence when their husband or wife is on leave from their deployment during a time of military conflict. The act puts a requirement on qualified employers to provide up to 10 days of unpaid leave to eligible employees.
Qualified Employer – has 25 or more employees. Qualified employers can be an individual, corporation, company, firm, state, city, county, county, municipal corporation, district, public authority, or any other government subdivision.
Qualified Employee – must be working an average of 20 hours a week or more, per week; he/she must also be a spouse of a qualified member of the US Armed Forces, National Guard, or Reserves. The “qualified military member” is one who has been deployed at a time considered as a military conflict, to an area that is defined as a combat one by the President of the United States. There are a couple of things that the qualified employee must provide his/her employer, in order to be eligible for family military leave:
- A notice of intention to take family military leave within 2 business days of receiving official notice of his/her spouse’s leave from deployment
- Documentation that certifies that the employee’s military spouse will be on leave from deployment, during the dates that the family military leave is requested
In addition to allowing a spouse of a qualified family member to take family military leave, the Family Military Leave Act also says that employers cannot retaliate or discriminate against an employee that requests or takes family military leave.
Is Military Leave Paid or Unpaid?
Under the federal law, USERRA, civilian employers are not obligated to pay for the time taken off for military leave of absence. The military will pay the military member according to their rank while serving. In addition, California expanded on this federal law and gives employees on military leave up to 30 days of paid time off. Once the employee returns to his/her job, the employer is not required to offer any back pay for the time that the employee was on military leave.
To supplement the any lost income, the employee may elect to use up their paid vacation time or any other paid leave time available through the employer. The employer is not allowed to force the employee to use their accrued paid leave time.
Wrongful Termination for a Military Leave of Absence
If you feel that you have been illegally terminated or discriminated against due to requesting, taking, or supporting military leave, contact an CA leave of absence lawyer for a consultation immediately. Even if the job contract was an “at-will” employment, the military leave laws can change that. Your employer cannot fire you due to a reason related to military leave or because of your military status. This also applies to the spouse or covered relative of military members who request or take family military leave. Talk to an employment lawyer who can help you with your military leave rights.