Military Leave

Alex2003

I have an employee who went on active duty military leave back in 2001 and came back in 2003. He was reemployed in his previous capacity/pay/benefits.

The leave was unpaid and, per the County policy (and the law as I read it), when on active military leave, there is no pay, benefits, accruals of any type provided.

His anniversary was right before he left, so he started accruing his new vacation rate prior to his leave. When he returned, he was not eligible for any new step in accruals.

From my reading of the law, he should not be getting any credit for the time he stayed out in terms of vacation/personal time/sick accruals. His service credit, of course, does include his time in the service.

I believe the County's policy follows the USERRA law of 1994 and its sections 4316 (d) and 4317.

So, my question is: is he or is he not eligible for vacation/personal time accruals when he was on his active duty military leave. Thanks.

Alex

Parabeagle

If your policy specifically excludes accrual of leave, benefit, time off, or anything else during unpaid leave (of any type), then I would agree with you, he is not entitled to vacation/personal time. A good way to handle something like this is to base time off on hours actually worked or taken in a "paid" status, and that will make life a lot easier.

Alex2003

Good point. I should have mentioned that, per our policy for unpaid leave of any type (unless specifically specified in the policy or union contract and it is not), there is no pay/benefits/time off accruals of any nature. Thanks.

jimlegal

Having dealt with several USERRA issues, I would suggest that you speak with your Counties employment attorney. The wrong step in this area could be not only costly, but also a crime in some states. Not only would you need to comply with USERRA, but your state may have a state law as well. There are cases I have read that have allowed service member to accure vacation while on military leave. These cases followed the employers policy and law. You may wish to visit ESGR website and contact their ombudsmen program for free assistance. In closing, again I suggest you contact your Counties employment attorney for specific advice. Good luck!