Q. One of our full-time employees has just informed us that he will be on two weeks of National Guard duty soon. He will be absent from work to attend an annual encampment in a reserve branch of the armed forces. What are our legal obligations concerning pay to this employee?
A. Leave under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) is unpaid. While you are obligated under USERRA to give an employee the time off for military duty, it does not have to be with pay (unless you have a policy in which you’ve agreed to provide the leave with pay).
An employee can, but is not required to, utilize his or her vacation time or paid time off to obtain pay during the leave.
Keep in mind, however, that if this is anunder wage-and-hour laws (i.e., his duties qualify him for exemption and you pay him on a salary basis), you must pay him his full weekly salary for any workweek in which he performs any work on your behalf.
So, for example, if your workweek starts on Monday and this employee is going to be on leave for two weeks beginning on Wednesday, you are going to have to pay him his full salary for both weeks because he will have worked Monday and Tuesday of the first week and Thursday and Friday of the second week. Therefore, unless his two-week leave just happens to coincide with the days of your workweek, you would have to pay him for the time away for Guard duty.