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return from active duty

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Tinaa

Member
What is the name of your state? Tx

A friend just returned from two years active duty in National Guard. He returned to his job for the same pay, but in a different capacity. He is complaining that the company did not allow him to accrue vacation time and he received no cost of living raises while he was gone. I told him I thought vacations were "earned" by time spent at work. Should he have received the raises and vacation time?
 


racer72

Senior Member
There is no requirement for an employer to give vacation time or pay raises while one is on active duty. Both would be something that is earned while you work.
 

badapple40

Senior Member
You have certain rights to re-employment following a deployment under federal law, specifically the Uniformed Services Employment and Reemployment Rights Act. Look to 38 USCS § 4301, et. seq.

38 USCS § 4311 states:

Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

A benefit of employment is arguably accrual of vacation time.

Some courts, in determining whether the provision has been violated, apparently have looked to see if the right in question is granted to all employees, and if it is, whether it is being denied to a reservist solely because of an absence to attend to reserve obligations. If this is so, the courts have found that the employee is being denied an "incident or advantage of employment" because of an obligation as a member of a reserve component. West v Safeway Stores, Inc. (1980, CA5 Tex) 609 F2d 147.

I think you have an arguable claim to relief. Many State attorney General's offices participate in soldier relief programs to assist you, and the legal assistance office at your nearest military base may also provide assistance, both free of charge. I suggest looking at both angles.
 

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