USERRA: New Jersey
Federal law and guidance on this subject should be reviewed together with this section.
Author: John Sarno, Employer's Association of New Jersey
- USERRA is a federal law that provides leave rights for public and private employees with military obligations. New Jersey law will apply in instances where it provides greater benefits, protections and/or rights than USERRA. See New Jersey Military Leave.
- Similar to USERRA, under the New Jersey Soldiers' and Sailors' Civil Relief Act, New Jersey employers must reinstate non-temporary employees who take leave to perform military service to their position or a position of like seniority, status and pay, as long as the employee fulfills certain reinstatement requirements. See Reinstatement.
- New Jersey law prohibits discrimination against military servicemembers. See Discrimination Protections.
New Jersey Military Leave
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides leave rights for public and private employees with military obligations. Among other things, USERRA requires employers to reinstate employees returning from military leave and to train or otherwise qualify returning employees.
Similar to USERRA, the New Jersey Soldiers' and Sailors' Civil Relief Act (Civil Relief Act) does not cover individuals in temporary positions.
Qualifications for Leave
Under the Civil Relief Act, military service means the performance of duty in the armed forces, on a voluntary or involuntary basis, on active duty, active duty for training, inactive duty for training, and full-time National Guard duty.
The Civil Relief Act does not, however, include the performance of duty in the commissioned corps of the Public Health Service and service under the National Disaster Medical System as required by USERRA.
A permanent employee who leaves a job to perform required military duty must be given a leave of absence. A permanent employee may also receive up to three months' of leave in a four-year period to attend assemblies, annual training, or armed forces service school. +N.J. Stat. § 38:23C-20(b). See Temporary Periods of Service/Training.
Any employee who is restored to a position after active duty or training for armed services must be considered as having been on furlough or leave of absence during that period.
Similar to federal law, under the Civil Relief Act, New Jersey employers must restore full-time or part-time employees who left their jobs to perform military service to their position or a position of like seniority, status and pay, as long as the employee meets the following reinstatement requirements (and the employer's circumstances have not changed to make it impossible or unreasonable to do so):
- The employee receives a certificate of completion of military service executed by an appropriate military officer;
- The employee is still qualified to perform the essential functions of his or her job; and
- The employee timely applies for reemployment (i.e., within 90 days of relief from service).
If the employer's circumstances make it impossible or unreasonable to reinstate the employee (e.g., reasons of economy or efficiency), the employer must restore such person to any available position, if requested by such person, for which the person is able or qualified to perform the duties. +N.J. Stat. § 38:23C-20(a).
Seniority and Benefits
Employers should treat employees on military leave as if they are on a leave of absence.
Therefore, upon return from service, employers must restore the employee's seniority and offer them the same insurance or other benefits to which other employees are entitled and under the same conditions as benefits are provided to other employees on a leave of absence. +N.J. Stat. § 38:23C-20(d).
Temporary Periods of Service/Training
A non-temporary employee is entitled to up to three months of leave in a four-year period in order to:
- Participate in assemblies;
- Participate in annual training; or
- Attend service schools conducted by the US Armed Forces.
If a non-temporary employee takes such a temporary leave, he or she is entitled to the same benefits, rights and privileges granted to persons in the military service subject to the employee:
- Being qualified to perform his or her job; and
- Making a reapplication for reemployment within 10 days after completion of a temporary period of service.
Employees on leave for temporary periods of service of longer than three months in any four-year period are not entitled to such benefits, rights and privileges. +N.J. Stat. § 38:23C-20(a).
Employers may not terminate an employee returning from military leave for one year following reinstatement. +N.J. Stat. § 38:23C-20.
The New Jersey Law Against Discrimination (NJLAD or LAD) prohibits discrimination against employees and applicants on the basis of liability for service in the US Armed Forces.
New Jersey's Military and Veterans Law protects members of the organized militia, US Armed Forces and US Armed Forces Reserves. The law prohibits a person from depriving a member of employment, preventing a member from being employed, or obstructing or annoying a member with respect to his or her employment because of his or her military membership or performance of military duty.
Employers should maintain documentation of any impending military leaves. If an employee gives oral notice of an impending military leave, an employer should document such notice and place it in the employee's file. HR personnel should inform all managers/supervisors that they must forward any written notice, and communicate any oral notice, of an employee's pending military leave to the HR department. Employers should remember, however, that under the federal USERRA law, written or oral notice of military leave is sufficient to meet the employee's obligation to inform the employer of the need for military leave.
Employers should also maintain documentation for all employment actions taken against an employee on military-related leave to the same extent as it maintains documentation of those actions for other employees. Because USERRA and military leave lawsuits can arise as a result of alleged discrimination based on military service or enlistment in the military, employers should have documentation to demonstrate that any action it has taken is not related to or the result of an employee's service in the military.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.