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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 115464
Experience:  20+ Years of Employment Law Experience
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Employment Military Leave policy and/or Vacation policy

Customer Question

Hello
JA: Hi. What is your issue regarding?
Customer: Employment Military Leave policy and/or Vacation policy conflict
JA: Have you documented this or discussed it with HR?
Customer: yes
JA: Is the employment agreement "at will," union, full time or part time?
Customer: full time
JA: Anything else you want the lawyer to know before I connect you?
Customer: I see conflict with userra, they are not allowing me to use vacation for military duty at all and forcing me to go back and do a time card correction to military leave for any vacation that was done for military service
Submitted: 6 months ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

What is your issue with the military leave? That your employer is not allowing you to be paid while on military leave?


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Customer: replied 6 months ago.
My issue is that I am asked to do a timecard change on already approved vacation from the past because they saw I cant get paid from Military duty and the company at the same time. I told them that I should be allowed to do both if I chose. There is nothing in vacation policy that states any limitation related to military duty. The military Leave would have me show my military stub to employer and then they would intern reduce my next pay for a portion so that I don't gain or loose. My intent was to use some days for vacation and other days for military leave since I needed to have more than the 15 annual required. Userra and/or DOL seems to state I am permitted to use vacation.
Expert:  Law Educator, Esq. replied 6 months ago.
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Thank you for your reply.

Unfortunately, vacation time is not covered by law and while USERRA says a person on military leave MAY use vacation time from the employer, that is up to the employer. So because there is no law mandating vacation time be given to an employee the employer can dictate how that time is used or not used. If the employer does not want to allow the time to be used for military leave because the employee is paid by the military during that time, that is up to the employer. USERRA only says they may allow you to use vacation pay, not that they must let you use vacation pay.


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Customer: replied 6 months ago.
I also find it somewhat discriminating that they single me out for High vacation use because they know some of my usages was for military. There new Vacation policy changed from a limited number of vacation days to unlimited. According to userra "https://www.dol.gov/vets/usc/vpl/usc38.htm#4316 "Any person whose employment with an employer is interrupted by a period of service in the uniformed services shall be permitted, upon request of that person, to use during such period of service any vacation, annual, or similar leave with pay accrued by the person before the commencement of such service. No employer may require any such person to use vacation, annual, or similar leave during such period of service.
Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your reply.

That is the issue, right in your last sentence you copied, this is something that is discretionary to the employer. They can let you use vacation, they can say you cannot use vacation, but they cannot force you to use vacation and you cannot force them to let you use vacation.

I am afraid that the problem you face is vacation is still at the discretion of the employer.
Customer: replied 6 months ago.
its the "similar leave" part that Im pointing out.. as repeated in previous sentence ...To me that connects to military leave ?
Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your reply.

I do not disagree with you and it is their switch to unlimited vacation time that is likely going to be the problem. If you have accrued vacation days, then they have to let you use those days. If you do not get accrued vacation days and they are discretionary and unlimited then the employer has a right to set those terms, so that is the major issue you have with this new switch in that there are no more accrued days to pull from it has become more discretionary to the employer with unlimited days.
Customer: replied 6 months ago.

I see, but additional y I had my vacation approved and its disclosed that it was for military duty,so I have records of not only my supervisor approving, but hr and my supervisors supervisor. Do they have the right to go back and change there mind?

Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your reply.

Once they approved vacation for military leave, if they actually changed their policy that change should be for future leave, but again because these vacation issues are not in any of our state or federal laws, that again is truly up to the employer. If you are saying that you are the only one this is being done to, then you need to file a complaint to the Veterans Administration and the EEOC for investigation.

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Customer: replied 6 months ago.

no this is within the new policy timeframe that the request was made is this year. And it was approved this year.

Expert:  Law Educator, Esq. replied 6 months ago.
Thank you for your reply.

They should not be retroactively changing it for any days already taken off, but they can change it for days not yet taken. Again, there are no laws in either state or federal employment laws that regulate vacation, not a one.

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