Any employee who is a member of the State Military Reserve is entitled to a temporary military leave of absence without pay while engaged in military training, drills, unit training assemblies or similar inactive duty, not to exceed 15 calendar days each year. (Military and Veterans Code 395.9)
Military leave with pay for the first 30 calendar days of the absence shall be granted to the following employees:
1. Members of the reserve corps of the Armed Forces, or of the National Guard or the Naval Militia who are on temporary military leave of absence for active military training, encampment, naval cruises, special exercises, or like activity, provided that: (Military and Veterans Code 395, 395.01)
a. The ordered duty does not exceed 180 calendar days, including time involved in going to and returning from such duty, and that paid military leave is not required for periods of inactive duty training.
b. The employee has been an employee of the district for at least one year immediately prior to the day the military leave begins. All military service shall count toward the period of time that the employee has been employed by the district.
2. An employee who has served with the district for at least one year who is ordered, on other than a temporary basis, into active military duty as a member of the reserves, National Guard or Naval Militia or who is inducted, enlists, enters, or is otherwise ordered or called into active duty as a member of the armed forces of the United States (Military and Veterans Code 395.02)
3. Members of the National Guard, however long employed by the district, who are engaged in military or naval duty during states of extreme emergency as declared by the Governor or during such time as the National Guard may be on active duty in situations described in Military and Veterans Code 146, provided that the leave does not exceed the duration of the emergency (Military and Veterans Code 395.05)
The 30-day pay entitlement is the maximum allowance which shall be paid for any one military leave or during any one fiscal year for employees on military leave as provided in items 1 and 2 above. (Military and Veterans Code 395.03)
For classified employees, 30 days compensation shall be one month's salary. (Education Code 45059)
Notwithstanding anything to the contrary in this administrative regulation, if an employee is ordered into active military service as a result of a formal declaration of war by the United States Congress, the employee shall be entitled to receive military leave as provided in Items 1 and 2 above. (Military and Veterans Code Section 395.03)
Employees on military leave shall receive the same vacation, sick leave and holiday privileges to which they would be entitled if they had not been on military leave. (38 USC 4316(a); Military and Veterans Code 395, 395.05)
Whenever the United States is engaged in war or whenever the Governor proclaims that an emergency exists in preparing for the national defense, employees may take a military leave of absence for service with the armed forces for the duration of the war or until the Governor proclaims that the emergency no longer exists, and 90 days thereafter, or until 90 days after the termination of such service. (Military and Veterans Code 395.4)
Absence on military leave shall not affect the classification of any certificated employee. In the case of a probationary employee, the period of such absence shall not count as part of the service required to obtain permanent status, but shall not be construed as a break in the continuity of service for any purpose. (Education Code 44800)
Within six months after an employee honorably leaves military service or has been placed on inactive duty, the employee shall be entitled to return to his/her position at the salary to which he/she would otherwise have been entitled. If a probationary employee was employed by the district under a lawful contract for at least one year, he/she shall be entitled to return to such position for the remainder of the period provided in the contract. (Education Code 44800)
If the employee's previous position has been abolished or has otherwise ceased to exist during his/her absence, the employee shall be reinstated in a position of like seniority, status and pay if such position exists, or to a comparable vacant position for which he/she is qualified. (Military and Veterans Code 395.1)
Legal Reference:
EDUCATION CODE
22850-22856 Pension benefits, STRS members on military leave
44800 Effect of active military service on status of employees
45059 Employee ordered to military/naval duty - computation of salary
GOVERNMENT CODE
18540 Definition of armed forces
18540.3 Recognized military service
20990-21013 Pension benefits, PERS members on military leave
MILITARY AND VETERANS CODE
146 Events justifying calling of militia into active service
389 Definition of temporary military leave
UNITED STATES CODE, TITLE 38
4301-4333 Uniformed Services Employment and Remployment Rights Act of 1994
COURT DECISIONS
Wright v. City of Santa Clara (1989) 213 Cal. App. 3d 1503
Bowers v. San Buenaventura (1977) 75 Cal. App. 3d 65
ATTORNEY GENERAL OPINIONS
77 Ops.Cal.Atty.Gen. 209 (1994)
69 Ops.Cal.Atty.Gen. 185 (1986)
63 Ops.Cal.Atty.Gen. 924 (1978)
19 Ops.Cal.Atty.Gen. 132 (1952)
18 Ops.Cal.Atty.Gen. 178 (1951)
Management Resources:
U.S. DEPARTMENT OF LABOR PUBLICATIONS
A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA), February 2001
WEB SITES
U.S. Department of Labor, Veterans' Employment and Training Service: http://www.dol.gov/dol/vets
National Committee for Employer Support of the Guard and Reserve: http://www.esgr.org
Regulation KINGS CANYON UNIFIED SCHOOL DISTRICT
approved: August 19, 2002 Reedley, California