- How should we count hours and dollars of additional pay during military duty training or deployments?
Answer: USERRA does not require employers to provide paid military leave or a differential in wages while on military leave. This benefit would be greater than the requirement of the law, reference 20 CFR § 1002.151.
§ 1002.151 If the employer provides full or partial pay to the employee while he or she is on military leave, is the employer required to also provide the non-seniority rights and benefits ordinarily granted to similarly situated employees on furlough or leave of absence?
Yes. If the employer provides additional benefits such as full or partial pay when the employee performs service, the employer is not excused from providing other rights and benefits to which the employee is entitled under the Act.
- How can we clarify HR confusion on the correct number of hours used for military duty and employees being forced to use sick time or vacation time?
Answer: No one can be forced to use sick time or annual leave for military duty. If the employee chooses to use AL or SL then it would be in concurrent with standard work day. No more and no less.
- How a veteran can get help if the employer is not “military friendly” and understanding veterans rights?
Answer: (See also the USSERA poster on the main USERRA page) A veteran can seek technical assistance from the U.S. Department of Labor Veterans’ Employment and Training Service (DOL VETS). If an individual is claiming entitlement to employment rights or benefits or reemployment rights or benefits and alleges that an employer has failed or refused, or is about to fail or refuse, to comply with USERRA, the individual may file a complaint with VETS. A member of the National Guard or reserve military can seek assistance from the Employer Support of the Guard and Reserve (ESGR) ESGR is a Department of Defense office established to promote cooperation and understanding between Reserve Component Service members and their civilian employers and to assist in the resolution of conflicts arising from an employee's military commitment.
- What is the correct procedure for HR staff when confronted with delayed military orders that are difficult to understand?
Answer: VETS provides assistance to any person or entity with respect to employment and reemployment rights and benefits under USERRA. This assistance includes a wide range of compliance assistance outreach activities, such as responding to inquiries; conducting USERRA briefings and Webcasts; issuing news releases; and, maintaining the elaws USERRA Advisor (located at http://www.dol.gov/elaws/ userra.htm), the e-VETS Resource Advisor and other web-based materials (located at http://www.dol.gov/vets), which are designed to increase awareness of the Act among affected persons, the media, and the general public. In providing such assistance, VETS may request the assistance of other Federal and State agencies, and utilize the assistance of volunteers.
- What can a veteran do about retribution issues for having to fulfill military duty?
Answer: A veteran can seek technical assistance from the U.S. Department of Labor Veterans’ Employment and Training Service (DOL VETS). If an individual is claiming entitlement to employment rights or benefits or reemployment rights or benefits and alleges that an employer has failed or refused, or is about to fail or refuse, to comply with USERRA, the individual may file a complaint with VETS. A member of the National Guard or reserve military can seek assistance from the Employer Support of the Guard and Reserve (ESGR) ESGR is a Department of Defense office established to promote cooperation and understanding between Reserve Component Service members and their civilian employers and to assist in the resolution of conflicts arising from an employee's military commitment.
If any of these questions pertain to the employees of the Commonwealth of Massachusetts; the “Redbook” from HRD should be consulted as well as the officials who are assigned to manage the policies therein. Private employers are addressed in answer #4.
Excerpts from the official USERRA Act
These rules are effective November 1, 2015. Any previous rules or policies of the Personnel Administrator or the Secretary of Administration and Finance governing vacation leave, sick leave, travel, court leave, military leave, other leave with pay, hours of employment and overtime, or charges to persons are hereby revoked, but no rule shall reduce vacation, personal or sick leave allowances to which a person was entitled on the effective date of these rules.
1.07 Definitions of Terms
The definitions here listed are intended for use only with the rules contained herein. In construing these rules the following words shall have the meaning herein given, unless a contrary intention clearly appears in the rule:
ABSENCE WITHOUT PAY: Any unauthorized absence from scheduled work.
APPOINTING AUTHORITY: A person, board or commission with the power to appoint or employ personnel; or his/her designee.
CABINET SECRETARY: The head of an executive office, as defined in M.G.L., Chapter 6A.
CALENDAR MONTH: The month of January, the month of February, etc., and is synonymous to the word "month."
COMPENSATED TIME: Time during which compensation for regularly scheduled work is paid.
CREDITABLE SERVICE: As defined in Rules 2.04 and 4.01.
DAY: When used in overtime rules it will mean work day, a period of 24 consecutive hours from the start of a "tour of duty" and the word "work day" need not be identical to a calendar day. For the purpose of all leave benefits and holidays, the term “day” with respect to employees who work an irregular work day or whose regular work day is longer than the normal seven and a half or eight hours shall mean seven and one-half or eight hours, whichever is appropriate.
DEPARTMENT: Office, department, division, board or commission.
EMPLOYEE: An employee or manager to whom these rules apply, pursuant to Rule 1.04.
FISCAL YEAR: Fiscal Year for pay purposes as determined by the various Appropriation Acts.
HUMAN RESOURCES DIVISION: The central human resources agency for Executive Branch departments, as authorized by Chapter 151 of the Acts of 1996.
INTERMITTENT EMPLOYEE: An employee who is expected to work less than 50% of the hours in a work week of a regular full-time employee in the same title, or who is expected to work less than 50% of a work year of a full-time employee (compare to REGULAR PART-TIME EMPLOYEE).
LEAVE OF ABSENCE WITH PAY: any authorized absence with pay from scheduled work, synonymous with "Leave with Pay."
LEAVE OF ABSENCE WITHOUT PAY: any authorized absence from scheduled work but without pay.
NOTICE OF AUTHORIZATION: Monthly premiums report - direct payment of insurance premiums to State Employees' Group Insurance Commission as provided by statute.
PERSONNEL ADMINISTRATOR: The head of the Human Resources Division as defined in M.G.L., Chapter 7, §4A, or his/her designee.
POLITICAL SUBDIVISION OF THE COMMONWEALTH: All branches and agencies of state, local and county government, including the legislative and judicial branches, municipalities, state and local authorities, constitutional offices, state colleges and universities, and district attorneys. Does not include the federal government or its agencies.
REGULAR PART-TIME EMPLOYEE: An employee who is expected to work 50% or more of the hours in a work week of a regular full-time employee in the same title (e.g., at least 18.75 hours for a 37.5 hour weekly tour of duty), and who is employed for at least 50% of a work year.
RULES: These rules, as mandated by M.G.L., Chapter 7, §28, unless the connotation is expressly otherwise.
SERVICE: Service in any position in the Commonwealth covered by these rules, unless otherwise indicated. Service shall also include any approved paid leave of absence as described in these rules, and industrial accident leave.
TRANSITION YEAR: Fiscal year in which an employee becomes eligible for additional vacation leave credits, based on years of creditable service.
VACATION ALLOWANCE: Vacation credits earned during any year.
VACATION CREDITS: The number of days of vacation earned and available under the rules in Section 2.00, not necessarily limited to a year.
VACATION STATUS: The amount of vacation credits that can be earned in a year.
VETERAN: As defined in M.G.L., Chapter 4, §7, clause 43.
WEEK: For the purpose of vacation rules, will mean five days, excluding holidays; for the rules pertaining to overtime, it will mean a "calendar week" i.e., a week extending from Sunday to Saturday inclusive.
6.00 MILITARY LEAVE
6.01 Paid Military Leave
Employees are entitled to receive their regular pay while performing certain duties in the armed forces of the Commonwealth. An employee shall be entitled to receive pay during the time of his/her service in the armed forces of the Commonwealth during the circumstances outlined in M.G.L. Chapter 33, §§ 38, 40, 41, or 60. Employees shall present their signed, official military orders to their agency or department head.
Employees are entitled to receive their regular pay from the Commonwealth while performing their annual tour of duty (ATD). State employees are entitled to receive regular pay not exceeding thirty-four (34) days in any state fiscal year and not exceeding seventeen (17) days in any federal fiscal year during their ATD.
Such employees shall also be entitled to the same leaves of absence and vacation with pay given other employees under Chapter 33, §59.
6.02 Call to Active Duty from U.S. Armed Forces Reserves
An employee in the service of the Commonwealth who is a member of a reserve component of the armed forces of the United States and who is called for duty other than the annual tour of duty of not exceeding 17 days shall be subject to the provisions of Chapter 708 of the Acts of 1941 as amended, or Chapter 805 of the Acts of 1950 as amended, or Chapter 671 of the Acts of 1966 and amendments thereto. He/she is also subject to the provisions of 38 U.S.C. Chapter 43, §§2021 to 2024, as amended, and shall be entitled to all rights and benefits derived therefrom.
6.03 Unpaid Military Leave Due to Active Duty
An employee who tenders his/her resignation or otherwise terminates his/her service for the purpose of serving in the military or naval forces of the United States, and who does so serve or is rejected for such service, shall be considered to be on unpaid military leave, except as otherwise provided by Chapter 708 of the Acts of 1941 as amended or 38 U.S.C. Chapter 43, §§2021 to 2024, as amended.
No such employee shall be considered to have resigned from employment with Commonwealth or to have terminated such service, until the expiration of two years from the termination of his/her military or naval service.
6.04 Part-Time Employees
Regular part-time employees shall be entitled to all of the above military leave benefits.
6.05 Employees Called Up to Active Duty
Upon returning to their state positions, employees who have been called to active military service by the United States of America shall be entitled to sick leave, vacation leave and personal leave that they would have accrued had they been on the payroll during their absence for military leave.