[Mobilization for State Service | USERRA | Paid Leave for Public Employees]

Questions and Answers about Mobilization for State Service and Rights of Guardmembers

1. Who is protected by the Law?
2. What rights does an organized militia member ordered to State service have to protect their job?
3. What is the status of the organized militia member with the employer while they are performing State active duty?
4. Do the protections of the law apply to a temporary employee?
5. Does the law give any protections after an organized militia member returns to work?
6. How can an organized militia member enforce the law if an employer violates it?
7. What happens if an organized militia member is injured while performing State service?
8. Is an organized militia member entitled to receive any pay from the employer while performing military service?
9. Does the law provide any other protections?
10. Must an employer release an employee who has been ordered to State active duty?
11. What happens to my medical benefits while I am on state active duty?

1. Are members of the New Jersey National Guard, Naval Militia or State Guard entitled to a paid leave of absence for any military duty?
2. Are other military members entitled to paid leaves of absence for military duty?
3. Does it matter whether the active duty for National Guard members is Federal or State service?
4. How are paid leaves of absence computed?
5. Must an employer pay military members for "drill weekends" or inactive duty training?
6. Are military members entitled to any other pay benefits after their paid military leave runs out?

1. Is an employee protected from unlawful discrimination by an employer based on military affiliation?
2. Can an employer refuse to allow an employee to attend scheduled drills or annual training?
3. Is there a limit to the amount of military leave an employer must permit?
4. What is not included in the 5-year cumulative total?
5. Is prior notice to the employer required for leave of absence for military duty?
6. What are valid military orders?
7. When may an employer require an employee to provide official, written military orders?
8. What if the employee cannot provide satisfactory documentation for military service in excess of 30 days?
9. Can an employer require an employee to apply for military leave of absence or otherwise submit official documentation for approval of military leave of absence?
10. Can an employee be required to find someone to cover his or her work period when military duty interrupts the work schedule?
11. Can an employer require an employee to reschedule drills, annual training, or any other military duty obligation?
12. Is an employer required to pay an employee who is on military leave of absence?
13. Are there time limits for an employee to return to work after completion of military duty?
14. After completion of weekend drill, what is the time limit for an employee to return to work?
15. What is the time limit for an employee to return to work after Annual Training or other types of extended military leave of absence?
16. What if the employee has an accident, is delayed by lack of military transportation, or is otherwise unable to report back in a timely manner?
17. What if an employee is injured or incurs a disability during military duty?
18. What job position is an employee returned to after military leave of absence?

New Jersey's organized militia consists of the National Guard (Army and Air), the Naval Militia, and the State Guard. The National Guard has both a Federal and a State Mission, while the Naval Militia and the State Guard have only State missions. In the event of a call up into State service by the Governor, members of the organized militia have similar rights under State Law as members of the National Guard have when there is a call up by the President. When the Governor mobilizes members of the organized militia into State service, their rights, privileges, and protections are provided for the State Law, New Jersey has its own Soldiers' and Sailors' Civil Relief Act to protect those members. (N.J.S.A. 38:23C-1 et.seq.)

1. Who is protected by the Law?

Any person ordered to active State service by the governor. This included Members of the Army and Air National Guard, State Guard and Naval Militia. (See N.J.S.A. 38:23C-2 and N.J.S.A. 38A:1-1(a)).

Upon completion of State service the organized militia member is entitled to reinstatement to his or her job, pursuant to N.J.S.A. 38:23C-20a. The organized militia member must apply promptly for reinstatement.
In addition, the organized militia member must still be able to perform the duties of their employment. Under a separate law, the employer must make reasonable accommodations to deal with any disability that the organized militia member may have, whether or not it was caused by military service.

They are to be treated as if they were on furlough or leave of absence and are to be treated the same as any other employee on leave of absence, no better and no worse. The organized militia member does not lose seniority or any pay increases given to other employees while he or she is performing military duty. If other employees on leave of absence are entitled to keep insurance, those performing military service are also entitled to do so. If other employees do not get to keep insurance, then the organized militia member does not get to keep insurance.

No, temporary employees have no reemployment protections.

Yes, they may not be fired except for cause for one year after returning to work.

The Superior Court is empowered to grant relief. This class of cases must be moved to the front of the calendar and the $175 filing fee is waived. In some cases, the organized militia member's case may be prosecuted by the Attorney General on the member's behalf.

If the injury is determined to have occurred in the line of duty, the member is entitled to workers' compensation law protections. (See N.J.S.A. 38A:13-1 et.seq.)

Members of the organized militia who are employees of the State or of any board or commission of the State or of any county, school district or municipality are entitled to paid leaves of absence for up to 90 work days per calendar year while performing state active duty. (See N.J.S.A. 38A:4-4.)

Yes. There are specific provisions providing for stays of pending litigation, potentially allowing for the termination of leases, giving some protection against eviction, but the law does not allow an organized militia member to stop paying their debts.

Yes, pursuant to N.J.S.A. 38A:2-4, 4-4, 3-6.1, 16(a), 17-1 and 18-1 et.seq. There are also criminal penalties for depriving organized militia members of employment or obstructing them from performing their military duties. (See N.J.S.A. 38A:14-1.)

By federal law, all employers must maintain your medical benefits for 30 days after leaving your employment. After 30 days, under COBRA, you are entitled to continue said coverage at your own expense. If you are a State, county or municipal employee, you are entitled to 90 days paid military leave, therefore the 30 day period above does not begin until your military leave is exhausted. If you are covered by an employer offering differential pay that pay may cover the continuation of your medical benefits as if you never left employment. You should go over your individual situation with your employer to see what your coverage is and what you have to do to protect yourself and your family.

In accordance with both federal and State law, military members are entitled to excused leaves of absence when performing military duty. There is no requirement to grant paid leaves of absence under federal law. However, under New Jersey law, N.J.S.A. 38A:4-4 (applicable to members of the organized militia, including the New Jersey National Guard, Naval Militia and State Guard) and 38:23-1 (applicable to other reservists including National Guard members from other states), military members who are permanent or full-time temporary employees of the State or of a board, commission, authority or other instrumentality of the State, or of any county, school district or municipality are entitled to paid leaves of absence when performing various types of military duty.

1. Are members of the New Jersey National Guard, Naval Militia or State Guard entitled to a paid leave of absence for any military duty?

Yes, members of the New Jersey Army and Air National Guard, Naval Militia or State Guard who are employees of the State or of a board, commission, authority or other instrumentality of the State, or of any county, school district or municipality are entitled to paid leaves of absence (full pay in addition to their military pay) for up to 90 work days per calendar year when performing any kind of federal or state active duty.

Yes, members of the Reserve components,(Army, Air Force, Marine or Coast Guard Reserve), or other organization affiliated therewith, which includes National Guard members from states other than New Jersey, are entitled to paid leaves of absence (full pay in addition to their military pay) for up to 30 work days per calendar year when performing any kind of federal active duty. (Federal Active Duty includes active duty pursuant to Title 10 or Title 32 of the United States Code)

No, National Guard members, by federal and state law, are ordered to federal duty by or with the consent of the Governor.

The paid leaves of absence authorized pursuant to NJSA 38A: 4-4 or 38:23-1 are computed on the basis of work days up to the maximum number of days authorized by law.

No, neither members of the New Jersey National Guard, Naval Militia and State Guard nor members of Reserve components are entitled to pay for drills. However, employers must grant excused leaves of absence (or otherwise accommodate the employees work schedule) in accordance with federal and state law.

No, while member must be given military leave without pay, the law allowing for differential pay (N.J.S.A. 38:23-3) is discretionary with each public entity. The Governor has authorized differential pay in certain situations (see specific Executive Orders), as have other counties and towns, for certain conflicts or missions.

The information provided below should not be considered legal authority, but is provided as general information about the Uniformed Services Employment and Reemployment Rights Act (USERRA).

1. Is an employee protected from unlawful discrimination by an employer based on military affiliation?

Yes. USERRA provides protections for initial hiring and adverse employment actions by an employer if the action relates even in part to the employee's military service. This protection also extends to potential witnesses of a discriminatory action on the part of the employer.

No. Employees must be excused from work to attend inactive duty training (drill) or annual training and the employer must treat the employee as if he or she has not been absent.

Yes. Although there is no longer any differentiation between voluntary and involuntary military duty, there is a 5-year cumulative service limit on the amount of voluntary military leave an employee can use and still retain reemployment rights. 

The 5-year total does not include: inactive duty training (drills), annual training, involuntary recall to active duty, or additional training requirements determined and certified in writing by the Service Secretary, and considered to be necessary for professional development or for completion of skill training or retraining.

Yes. Unless precluded by military necessity, advance notice must be provided either orally or in writing. The context for what constitutes timeliness of notification was not spelled out in detail by Congress under USERRA. However, employees who participate in the National Guard or Reserve should provide their employers as much advance notice as possible. Failure to provide notice could result in a denial of the protection of USERRA.

All written or verbal orders are considered valid when issued by competent military authority. A military member in receipt of official orders is obligated by federal statute to execute them. The recurring requirement to perform inactive duty training (drill) is an example of when written orders may not be formally issued. 

After periods of military leave of absence for more than 30 days, the employer has the right to request such documentation, which can be used to establish the employee's basic eligibility for protection under USERRA. All National Guard and Reserve members are encouraged to provide a copy of orders, the annual drill schedule, or other type of documentation to employers as soon as available and, if possible, before the commencement of military duty.

The employer must promptly reinstate the employee pending its availability. The employer may contact the military unit if necessary.

No. As stated earlier, an employer may not require documentation for notification prior to military duty. Further, an employer does not have a "right of refusal" for military leave of absence, so long as the employee has not exceeded the 5 years of cumulative service provided under USERRA.

No, an employee is responsible for notification but not for altering the work schedule or finding a replacement.

No. When military duties would require an employee to be absent from work for an extended period, during times of acute need, or when (in light of previous leaves) the requested military leave is cumulatively burdensome, the employer may contact the military commander of the employee's military unit to determine if the duty could be rescheduled or performed by another member. If the military commander determines that the military duty cannot be rescheduled or canceled, the employer is required to permit the employee to perform his or her military duty.

No. While many employers offer differential pay or a specific number of paid military leave days, an employer is not required to pay an employee on military leave of absence.

Yes. There are three formats for reinstatement (application for reemployment), dependent on the duration of military service. Please refer to question 15 for a detailed breakdown of these formats. An employer should reinstate an employee within a matter of days of application, if not on the same day as the application is made.

Either the the beginning of the next regularly scheduled work day or during that portion of the next regularly scheduled shift that would fall eight hours after the end of drill and a reasonable amount of time to commute home. For example, an employer cannot require a service member who returns home at 10 p.m. to report to work 2.5 hours later at 12:30 a.m. However, the employer can require the employee to report for the 6 a.m. shift, or scheduled work period, the next morning (after reasonable commute from military duty to home followed by 8-hours). Included in the 8 hour period is time for rest and the commute to work.

Time limits for returning to work depend on the duration of the orders. The rules are:
Service of 1 to 30 days: the beginning of the first regularly scheduled work day or 8 hours after the end of the military duty, plus reasonable commuting time from the military duty station to home. Service of 31 to 180 days: application for reinstatement must be submitted not later than 14 days after completion of military duty. 
Service of 181 or more days: application for reinstatement must be submitted not later than 90 days after completion of military duty.

The employee must report back to work as soon as possible. If the reason for the employee's delay is not related to military duties, the employee is subject to the personnel policies and practices the employer would normally apply to employees with unexcused absences.

The deadline for reinstatement may be extended for up to 2 years for persons who are convalescing due to a disability incurred or aggravated during military service, and employers must make reasonable accommodations for the impairment. 

Except with respect to persons whose disability occurred in or was aggravated by military service, the position into which an employee is reinstated is determined by priority, based on the length of military service. The rules are: Service of 1 to 90 days: (a) in the job the person would have held had he or she remained continuously employed (possibly a promoted position), so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer, or (b), if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service. Service of 91 or more days: (a) same as for service of 1 to 90 days, or a position of like seniority, status and pay, so long as he or she is qualified, or (b) if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service or which nearly approximates that position.

Note: The reemployment position with the highest priority reflects the "escalator" principle, which requires that a returning service member steps back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed.

USERRA specifies that returning employees must be "promptly reemployed." What is prompt will depend on individual circumstances. Reinstatement after 3 years on active duty might require two weeks to allow giving notice to an incumbent employee who might have to vacate the position.

[Mobilization for State Service | USERRA | Paid Leave for Public Employees]