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Can Employers Apply USERRA Differently for Workers Who Volunteer for Service?

Q: Our Uniformed Services Employment and Reemployment Rights Act (USERRA) policy is administered differently for employees ordered into military service or leave and those who volunteer for military leave. The policy states that for ordered military leave shorter than 31 days, the company will pay the employee’s normal rate of pay. For voluntary military leaves, however, our company pays the differential pay for only the first 30 days. Is our policy OK?

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A: USERRA is a federal law created to provide certain job protections for employees who take temporary leaves of absence for active or reserve military duty. In general, USERRRA prohibits employers from firing or discriminating against any employee (unless he’s employed for a brief, nonrecurring period and has no reasonable expectation that employment will continue indefinitely) who takes a leave of absence of up to five years (that may be longer in limited circumstances) for active or reserve military duty.

Wage payment during the leave period isn’t required by USERRA. During the period of service, the employee is deemed to be on furlough or a leave of absence from the civilian employer and is entitled to the nonseniority rights and benefits the employer generally provides to other employees with similar seniority, status, and pay who are on furlough or leaves of absence.

While employers aren’t required to pay wages to an employee on military leave, they may voluntarily choose to do so. Therefore, it might seem that employers could “voluntarily” treat these situations differently.

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Employers should understand, however, that USERRA prohibits discrimination or retaliation “because of” military leave status. Since USERRA specifically provides protection for both voluntary and involuntary active duty, distinguishing between voluntary and involuntary military leaves could expose your company to a discrimination claim.

USERRA prohibits discrimination for any benefit, and it thus would appear there should be no distinction between the two types of leave. The better practice would be to treat involuntary and voluntary leave the same. In addition, your military leave policy should be consistent with any other types of leave.

USERRA sets forth a number of rights and responsibilities for both the employer and the employee. In general, employers should remember that the law’s purpose is to prohibit discrimination against employees because of service in “the uniformed services.”

Policies concerning military leave should be consistent with other leave policies and shouldn’t punish an employee for military service. That includes not only individuals in the Army, Navy, Air Force, and Marine Corps but also those who are Coast Guard members, Public Health Service Commission officers, reservists, national guard members, and certain disaster response workers.

A covered individual includes a past or present member of the uniformed services, a person who has applied for membership in the uniformed services, or a person obligated to serve in the uniformed services. You are encouraged to discuss situations involving military leave with your employment counsel.