Military Leave: Basic Employment Rights for Armed Service Members

Both federal and California law provide protection from discrimination for employees who leave their jobs to serve in the military. Below, you'll find information regarding who is covered and a list of applicable rules related to denying employment, retention in employment, reemployment and employment benefits.

Right to a Leave of Absence: Advance notice of a military leave of absence is not required if it is impossible or precluded by military necessity. To qualify for the right to leave and the right to have your job back when you return (reemployment), the employee must give advance written or verbal notice to his or her employer. The absence may not exceed five years combined from the same employer. The employee must submit an application for reemployment or otherwise report to work soon after his or her period of military service is done.

Reemployment Rights Partially Depend Upon Length of Absence: If the employee is out on military leave for less than 91 days, he or she should be placed in the same position he or she had before leaving. If the leave exceeds 90 days, the employee should be entitled to the same position as before, or be placed in a position of similar seniority, status and pay. Other rules apply for employees not qualified due to disability or when two or more employees are entitled to reemployment.

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There are exceptions to the requirement of remployment. An employer may not be required to give the employee their job back if it would be considered impossible or unreasonable to do so, or if it would impose an undue hardship on the company. Reemployment is also not required when there was no reasonable expectation that employment would continue indefinitely.

Paid Time Off and Pension Issues: Employees are entitled to use accrued vacation or paid time off benefits for time served, provided the accrual occurred before the leave, but employers may not require the use of these benefits for time served. Generally, an employer may not treat the leave as a break in service for purposes of the employee’s participation in a pension plan. The time spent on leave is also considered time spent in service with the employer for purposes of accruing benefits (such as paid time off) and for the non-forfeitability of accrued benefits (such as health benefits or pensions).

Rights to Benefits and Seniority: Employees have the right to keep the seniority they earned up to the time they went on leave in addition to the level they would have earned had they continued work. Employees are also entitled to all benefits relating to their seniority, including the benefits associated with the level they would have achieved had they continued work.

Right to Continue Health Plan: Employers must allow employees the election to continue their health plan coverage subject to certain time constraints. The employee may elect to continue coverage for the lesser of the following two periods: 1) the 24-month period from the day leave begins; or 2) the day after the employee failed but was required to apply for reemployment. If the leave of absence was for less than 31 days, any health benefits must continue and the employee may not be required to pay a premium higher than the employee share, if any. If the leave was for 31 days or more, health benefits will continue but the employee may be required to pay up to the full premium.

Job Protection: Finally, under federal law, an employee may not be discharged for an entire year from the time he or she returns to work, except for cause and as long as he or she worked for the employer more than 180 days before reemployment. A job protection period of only180 days is given to employees who worked more than 30 but less than 181 days before reemployment.

State Law and Private Employers: California law provides for a temporary leave of absence without pay for military training, drills, encampment, naval cruises, special exercises, etc., to all employees of private corporations, companies or firms who are members of the reserve corps of the U.S. armed forces, the National Guard, or the Naval Militia. This protection is given only if the ordered duty does not exceed 17 calendar days per year, including the time spent going to and returning from duty.

State Law and Public Employers: California law provides for a temporary leave of absence with up to 30 days of pay, for military training, drills, encampment, naval cruises, special exercises, etc., to all public employees who are ordered to military duty and who have been employed with the public agency (military service included) for at least one year from the day on which the leave begins. This protection is given only if the ordered duty does not exceed 180 calendar days, including time spent going to and returning from duty. Pay for a leave of absence may not exceed 30 days in any one fiscal year.

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(Reviewed 9-08)