ST32 New Jersey (December 2007; Updated August 2010)
1.18: USERRA and Other Laws
2.0: Paid Leave

Reemployment Rights of Public Employees in New Jersey

By CAPT Samuel F. Wright, JAGC, USN (Ret.)

New Jersey law provides as follows concerning reemployment rights of persons who leave public employment for uniformed service:

“Every person holding office, position or employment, other than for a fixed term or period, under the government of this State or of any county, municipality, school district or other political subdivision of this State, or of any board, body, agency or commission of this State or any county, municipality or school district thereof, who after July first, one thousand nine hundred and forty, has entered, or hereafter shall enter, the active military or naval service of the United States or of this State, in time of war or an emergency, or for or during any period of training, or pursuant to or in connection with the operation of any system of selective service, or who, after July first, one thousand nine hundred and forty, has entered or hereafter, in time of war, shall enter the active service of the United States Merchant Marine, or the active service of the Women's Army Auxiliary Corps, the Women's Reserve of the Naval Reserve or any similar organization authorized by the United States to serve with the Army or Navy, shall be granted leave of absence for the period of such service and for a further period of three months after receiving his discharge from such service. If any such person shall be incapacitated by wound or sickness at the time of his discharge from such service, his leave of absence shall be extended until three months after his recovery from such wound or sickness, or until the expiration of two years from the date of his discharge from such service, whichever shall first occur.

“In no case shall such person be discharged or separated from his office, position or employment during such period of leave of absence because of his entry into such service, or because of reasons of economy or efficiency or other related reason if entry into active military service in the Armed Forces of the United States was in time of war or an emergency. During the period of such leave of absence such person shall be entitled to all the rights, privileges and benefits that he would have had or acquired if he had actually served in such office, position or employment during such period of leave of absence except, unless otherwise provided by law, the right to compensation. Such leave of absence may be granted with or without pay as provided by law. Such person shall be entitled to resume the office, position or employment held by him at the time of his entrance into such service, provided he shall apply therefor before the expiration of his said leave of absence. If the employer's circumstances have so changed for reasons of economy or efficiency or other related reason as to make it impossible or unreasonable for such person who entered service in time of war or other emergency to resume the office, position or employment held prior to entrance into such service, the employer shall restore such person to a position of like seniority, status and pay, or any position available, if requested by such person, for which the person is able or qualified to perform the duties. Upon resumption of his office, position or employment, the service in such office, position or employment of the person temporarily filling the same shall immediately cease. No person who, after entry into such service, shall have been separated from any such service by a dishonorable discharge shall be entitled to any of the rights, privileges or benefits herein conferred.” (New Jersey Statutes, section 38:23-4.)

Note: The Federal Uniformed Services Employment and Reemployment Rights Act (USERRA) accords reemployment rights to persons who leave civilian jobs (federal, state, local, or private sector) for voluntary or involuntary service in the uniformed services. USERRA applies at all times, not just "war or emergency" times. To the extent that section 38:23-4 limits reemployment rights to "war or emergency" times, that section is invalid under Article VI, Clause 2 of the United States Constitution (commonly called the "Supremacy Clause").

New Jersey law provides as follows concerning the right of public employees to 30 days of paid military leave per year:

“a. A permanent or full-time temporary officer or employee of the State or of a board, commission, authority or other instrumentality of the State, or of a county, school district or municipality, who is a member of the organized reserve of the Army of the United States, United States Naval Reserve, United States Air Force Reserve or United States Marine Corps Reserve, or other organization affiliated therewith, including the National Guard of other states, shall be entitled, in addition to pay received, if any, as a member of a reserve component of the Armed Forces of the United States, to leave of absence from his or her respective duty without loss of pay or time on all work days on which he or she shall be engaged in any period of Federal active duty, provided, however, that such leaves of absence shall not exceed 30 work days in any calendar year. Such leave of absence shall be in addition to the regular vacation or other accrued leave allowed such officer or employee. Any leave of absence for such duty in excess of 30 work days shall be without pay but without loss of time.

“b. Notwithstanding subsection a. of this section, a full-time temporary officer or employee who has served under such temporary appointment for less than one year shall receive for the service hereinabove described leave without pay but without loss of time.” (New Jersey Statutes, section 38:23-1.)

While this section does not mention the Coast Guard Reserve, Coast Guard Reservists who are public employees in New Jersey do in practice receive the 30 days of paid military leave."

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