San Diego Metropolitan - San Diego Scene

In California, an employer has two separate laws to consider — one state, one federal — when an employee is called to active military duty, says Joe Sczempka, president of the San Diego Employers Association. On the state side is the Military and Veterans Code, specifically Section 394. On the federal side is the Employment and Re-Employment Rights of Members of the Uniformed Services Act of 1994.

The state law is relatively straightforward, Sczempka says. It provides that an employer may not “discharge, refuse to hire, or otherwise discriminate against” a person because of military service. The law also entitles the employee to an unpaid leave of absence not to exceed 17 days for training or active duty.

The federal law is more stringent and more complicated. It, too, prohibits discrimination against persons who serve in the armed forces. This prohibition applies not only to tangible job loss, but also to wages or salary, health plans, stock ownership plans, pension or retirement plans, insurance coverage, bonuses and vacations. Employers need not reinstate an employee if circumstances have changed so dramatically that re-employment would be impossible or unreasonable, but that standard is very difficult to meet.

If the employee’s military service lasts less than 31 days, the employer must, under federal law re-employ the employee if a request is made by the beginning of the first regularly scheduled work week following the employee’s release from military duty. Where an employee’s military service lasts for more than 31 days but less than 181 days, that “reporting back” period is extended to not later than 14 days after the military service concludes; if the employee’s military service lasts for 181 days or more, the employee has up to 90 days after completion of his or her military service to report back to his or her employer.