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Pay during Military Leave for Exempt Employee

Is a public sector employer (hospital) required to pay the salary of an exempt employee (PA) their regular salary while they are on active two week military training?

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes rights and responsibilities for uniformed service members and their civilian employers. The act protects from discrimination or retaliation an employee who gives proper notice of the need for a military related absence and provides job reinstatement rights for up to five years with limited exceptions.

USERRA does not require employers to pay employees while on military leave. The federal Fair Labor Standards Act (FLSA) further states that the employee need not be paid for any workweek during which he performs no work such as when an employee is on temporary leave for military duty for the entire workweek. However, under the FLSA, an exempt employee who works any part of a workweek must be paid his full salary for the entire workweek. Therefore, if an exempt employee works any part of a week, then spends the rest of the week in military service, the salary for the entire week must be paid. The employer is entitled to offset the employee’s salary with the amount of military pay or allowances received.

Additionally, an employer is prohibited from requiring the employee to use their paid time off benefits for the military absence. However, the employee is entitled to use his paid time off benefits if he requests it.

Some states have additional military leave laws that may be more generous than USERRA. Employers should check state law when encountered with a request for military leave or feel free to re-post the question with the state.

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This entry was posted on Friday, August 1st, 2014 at 12:48 pm and is filed under
Compensation, Labor Laws.
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