The applicable federal law is the Uniformed Services Employment and Reemployment Rights Act (hereinafter "USERRA"; 38 U.S.C. § 4301). The USERRA prohibits discrimination by an employer against any member of the armed services in hiring, retention, re-employment, promotion opportunities, or any benefit of employment by an employer. (38 U.S.C. § 4311(a).) A person alleging that an employer has violated the USERRA may commence legal proceedings against the employer either independently or with the assistance of the Attorney General. (38 U.S.C. § 4323.) An employee can recover any lost wages or benefits resulting from an employer’s violation of USERRA. Further, courts may double the amount as liquidated damages if it finds that an employer’s violation of USERRA was willful.

Under state law, employee rights in connection with military leave law are established by the Military and Veterans Code (hereinafter "M&V Code"). The M&V Code provides that it is a misdemeanor to discriminate against members of the military because of their membership in the military. (M&V Code § 394(f).) Any person that discriminates against a member of the military is liable for actual damages and reasonable attorney’s fees incurred by the injured party. Employers should be prepared to adhere to whichever statute affords its employees the greatest level of rights.

SALARY
Under federal law, employers do not owe a salary to employees on active leave. (38 U.S.C § 4316.) However, under California law, an employer’s obligation to pay an employee’s salary while on military leave depends upon whether the employee is called up for active duty (military leave) or training (temporary military leave). Employees on active duty, who have been employed for a period of "not less than one year," are entitled to pay for the first 30 days of military leave. (M&V Code 395.02.) There is an exception for National Guard members. A National Guard member on active duty is entitled to receive his or her salary for the first 30 calendar days regardless of his or her length of service with the public employer. (M&V Code 395.05.)

Employees on temporary military leave, with at least one year of service with the public agency, or at least one year of combined military/ employment service, are entitled to receive pay for the first 30-days of temporary military leave. (M&V Code 395.01.) (There is no exception here for members of the National Guard.)

VACATION AND SICK LEAVE BENEFITS
Under federal law, if an employee accrues vacation and sick leave benefits based on seniority, then the employee is "entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed." (38 U.S.C. § 4316(a) [emphasis added].) However, if the accrual of vacation and sick leave benefits is not based on seniority, then the employer must treat the individual returning from military service as it treats any other employee who took leave for non- military purposes. (38 U.S.C. § 4316(b).) Thus, the employer is not required to provide the employee with preferential treatment.

Under state law, an employee on military leave for the purpose of active duty, except as a member of the National Guard, shall not accrue sick leave or vacation while on such leave. (M&V Code § 395.1(b).) Employees who are ordered to active duty as a National Guard member shall accrue vacation and holiday privileges, but not sick leave, for the first 30 days of active service, regardless of the length of service with the public employer. (M&V Code § 395.05(a).)

An employee on temporary military leave (training) with at least one year of service with the public agency, or at least one year of combined military/ employment service, continues to accrue the same vacation, sick leave, and holiday privileges for up to a maximum period of 180 days. (M&V Code § 395(d).) Members of the National Guard on temporary leave must also have at least one year of service with the employer or one year of combined military/ employment service in order to be entitled to the accrual of vacation and sick leave.

HEALTH INSURANCE BENEFITS
An employee who is on military leave for less than 31 days cannot be required to pay more than the employee’s regular share, if any, for health coverage. (38 U.S.C. § 4317(a)(2).) For employees on military leave for longer periods of time, the employer is not required to provide health insurance benefits, but must give the employee the option of electing continuing coverage. An employee can elect to continue coverage for up to a 24- month period and may not be required to pay more than 102% of the full premium. (38 U.S.C. § 4317.) This provision mirrors the employer obligations set forth under the Consolidated Omnibus Budget Reconciliation Act of 1986 ('COBRA"). Plan reinstatement must immediately follow reemployment, and exclusion or waiting periods may not be applied to employees or family members.

REEMPLOYMENT AFTER MILITARY LEAVE
As a general proposition, an employer is required to reemploy an employee returning from military leave at the employee’s request to be reinstated.

Under the USERRA, an employee returning from military service, for reasons other than war or national emergency, must seek reinstatement with his/ her employer within a certain time frame that depends on the length of his/her military leave. For example, if an employee has taken 1-31 days of military leave, the employee must report to the employer no later than the beginning of the first regularly scheduled work period on the first full calendar day following the completion of the period of service. For a leave of more than 30 days but less than 180 days, the employee must submit an application for reemployment with the employer not later than 14 days after the completion of the period of service. For a leave of more than 180 days, the employee must submit an application for reemployment with his/her employer within 90 days of his/ her completion of military service. (38 U.S.C. § 4312(e)(1).)

If the employee does not seek reemployment within the specified time frame, he/she does not automatically forfeit his right to reemployment. Rather, the employee "shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absences from scheduled work." (38 U.S.C. § 4312(e)(3).) Thus, employers should review their policies and practices in anticipation of such issues.

Significantly, federal law does not require an employer to reemploy an individual returning from military service if 1) the employer’s circumstances have changed such that reemployment is impossible or unreasonable, 2) employment would impose an undue hardship on the employer, or 3) the position in question only exists for a brief, non-recurrent period and there was no reasonable expectation that such employment would continue indefinitely or for a significant period. (38 U.S.C. § 4312(d)(1).)

California law also provides for reemployment after military service. Section 395.1 of the M&V Code states that an employee returning from active duty after serving in time of war or national emergency is entitled to reinstatement within 6 months after the termination of military service, but not later than 6 months after the end of the war, emergency, etc. Under state law, the right to reemployment does not extend to a public employee who fails to return to his or her position within 12 months after the first date he or she could terminate his or her active service. (M&V Code 395.1(b).)