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Employee out on military leave: Must we pay him?

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in Employment Law,FMLA Guidelines,Human Resources

Q. We have an employee who will soon go on temporary military duty soon and be gone for several weeks. Do we have to pay him at all during his absence, or does he receive military pay?

A. Leave covered under the federal military leave law, the Uniformed Services Employment and Reemployment Rights Act (USERRA), is unpaid. So is leave for members of the National Guard under Florida’s Military Affairs Act (Ch. 250, Fla. Stat.). You must give the employee time off, but you don’t have to pay him, at least under federal and Florida laws.

Many companies, however, do have policies providing for pay when military leave is for short periods of time or they allow employees to use accumulated vacation or personal time. Your policy might provide for full pay or might replace the difference between military pay and the employee’s regular salary.

If he is an exempt employee, you must pay the employee’s full weekly salary for any workweek in which he performs any work on your behalf. 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 coincides with the days of your workweek, you would have to pay him for the time away for military duty.

Check with your employment attorney about the recent amendments to the Florida Uniformed Servicemembers Protection Act (in Ch. 250, Fla. Stat.) that give National Guard members the right to re-employment afforded to service members under USERRA. The amendments provide additional entitlements and greater protection than federal law does members of the National Guard.

This is also a good time to learn more about leave for service members and their relatives (for instance, under the amendments to the FMLA) who have been deployed or who have returned from service with injuries. 

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