Employees taking time off for military duty or who wish reinstatement to their former jobs when they return are protected by federal law. One type of leave allows current employees time off for active duty or to comply with "reserve training obligations," such as the Army Reserve or National Guard duty. Returning veterans are also guaranteed reinstatement rights in most cases. The following are the most frequently asked questions about military leave.
Q. Which employees are covered by the federal law on military leave?
A. Employees who leave employment in "other than a temporary position" for the purpose of military training, service or examination. The phrase "other than a temporary position" has been interpreted broadly by the courts and includes part-time, seasonal and temporary employment when the work was to be continuous for an indefinite period or regularly recurs.
Q. Which employers are covered by this law?
A. All employers are covered.
Q. How long can an employee take military leave and still be eligible for reemployment?
A. A returning veteran cannot have served more than five years on active duty since leaving the job to which the veteran requests reinstatement. There is no time limit on the amount of time reservists spend in training.
Q. What must the returning veteran do to obtain his or her reemployment rights?
A. Veterans and reservists returning from active duty must notify their former employers of their intention to resume their former jobs within 90 days of release from duty. Reservists and guardsmen returning from training must only inform their employers of their training obligations and report back at the "next regularly" scheduled working period. No particular form of notification is required by the law.
Q. Does the employer have to create a position for the returning veteran?
A. No. An employer is not required to create a "new" position in order to reemploy the veteran, if the new job would be useless if there was a reduction of the work force. If the job still exists, the employer must give the job back to the returning veteran even if a replacement has been hired. The courts have held that the employer should reinstate the veteran or reservist, even if the replacement employee may be disadvantaged.
Q. What are veterans´ or reservists´ reemployment rights?
A. The veteran or reservist is to be reemployed in the same position or a position of "like seniority, status and pay," as if he or she had remained on the job instead of performing military service. The alternate position of "like seniority, status and pay" is given when the returning veteran is physically disabled from performing the former job by the military service.
Q. What about the employee´s seniority during the time of military leave?
A. If a seniority system exists, the employer must treat returning veterans as though they continued to accrue seniority during their military service.
Q. What about pay rates, vacations, holidays and promotions?
A. Pay and fringe benefits may not be denied or reduced due to military leave. An employer may not require a reservist or National Guard member to use his or her accrued vacation leave time for military training. For example, if the employee would have received a 5 percent pay increase based on time at the job, the employee would still receive the raise since military service is counted as if he or she never left the job.
Q. May an employer require a worker to give notice of leaving a job to go on active duty in the military service?
A. No. The worker is not required to notify the employer that military service is the reason for leaving a job.
Q. Can I discharge a veteran during his or her military service?
A. No. Additionally, once the veteran is reemployed, the employer cannot discharge the veteran except for cause, for one (1) year or six (6) months in the case of a reservist.
Q. Can I refuse to hire someone who is a reservist or member of the National Guard?
A. No. The Veterans´ Reemployment Rights Law was amended in 1986 to forbid refusal to hire someone because of such responsibilities, along with the former prohibitions against discrimination.
Q. Whom should I contact if I need more information?
A. Contact the U.S. Department of Labor, Veterans´ Employment and Training Program (VETS), Employment Division Central Office, 875 Union, NE, 312 Employment Building, Room 108, Salem, OR 97311-0100. Salem phone: (503)947-1490, Portland phone: (503)731-3478.
Nothing on this website is intended as legal advice. Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations. This communication is not an agency order. If you need legal advice, please consult an attorney. We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current. We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
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