ST05 California (December 2007; Updated August 2010 - no changes to law)
1.18: USERRA and Other Laws
2.0: Paid Leave
California Law and USERRA with respect to State and Local Employees
By CAPT Samuel F. Wright, JAGC, USN (Ret.)
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a floor and not a ceiling on your rights as an employee who leaves a civilian job for service in the uniformed services (see Law Review 18). Section 4302(a) of USERRA [38 U.S.C. 4302(a)] provides that USERRA does not override or supersede a state law, local ordinance, collective bargaining agreement or other contract, or an employer policy or practice that provides you greater or additional rights. Section 4302(b) [38 U.S.C. 4302(b)], though, provides that USERRA supersedes any of these things that purport to limit your rights under USERRA or that impose an additional prerequisite upon your exercising your federal USERRA rights.
USERRA gives you the right to time off without pay from your civilian job to perform "service in the uniformed services." That phrase is defined in section 4303(13) of USERRA, 38 U.S.C. 4303(13). The definition includes active duty, active duty for training, initial active duty training, inactive duty training (drills), and funeral honors duty (performed by National Guard and Reserve personnel). The definition even includes a period of time an employee is required to be away from his or her civilian job for the purpose of an examination to determine fitness to perform any such duty.
If you are employed by the State of California or a political subdivision, you are entitled, under state law, to up to 30 days of paid military leave for active duty or active duty for training. You are not entitled to paid military leave for inactive duty training (drills). The exclusion of inactive duty training from California's paid military leave law could hardly be clearer.
California Government Code, section 19775.1 reads as follows: "An employee who is granted a short-term military leave of absence for active military duty, but not for inactive duty, including, but not limited to, scheduled reserve drill periods, and who for a period of not less than one year immediately prior to the effective date of active duty has had continuous state service as defined by Department of Personnel Administration rule that is not broken by a permanent separation, or who has had continuous state service immediately prior to the active duty not broken by a continuous separation and sufficient recognized military service that need not be contiguous to equal one year shall be entitled to receive his or her salary or compensation for the first 30 calendar days of active duty during the absence."
Insofar as California is granting state and local government employees a privilege that is over and above USERRA, the state is free to apply such criteria as it chooses to this generosity. California's choice to provide for paid military leave for active duty or active duty for training, but not for inactive duty training, is not a violation of federal law. Similarly, California's choice to limit paid military leave to employees with at least a year of tenure does not violate USERRA, because the federal law does not require an employer to grant any paid military leave.
If you are employed by the State of California or a political subdivision, you have the right, under USERRA, to unpaid military leave to perform inactive duty training, or any other kind of "uniformed service" as defined by USERRA. Under Article VI, clause 2 of the U.S. Constitution (commonly called the "Supremacy Clause"), federal law overrides conflicting state law, or even a state constitution. The State of California cannot prevent you from absenting yourself from work to perform inactive duty training, or any other form of uniformed service, but California will not pay you for those workdays that you miss while performing inactive duty training. This includes employees who do not meet the one-year-tenure standard needed to qualify for the paid military leave provision.
Section 4316(d) of USERRA [38 U.S.C. 4316(d)] gives you the right (but not the obligation) to use, during a period of uniformed service, any vacation, annual leave, or similar leave with pay that you have accrued prior to the period of service. If you really want or need double pay during your drill periods, you can accomplish that by using your annual leave or vacation during those days. Of course, you cannot "have your cake and eat it too." If you exhaust your annual leave for drill weekends, you will not be able to take a vacation.
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