State Laws

Almost every state also has a law prohibiting discrimination against those in the state's militia or National Guard, and if your state law provides more protection than USERRA, your employer must follow the state law.

Most state laws also require employers to grant leave to employees for certain types of military service. Some states require leave only for those employees called to active duty, other states require leave for those called for training as well. Employers don't generally have to pay employees who take military leave, although some states provide paid leave for public employees.

When an employee takes military leave, under most state laws the employer must offer re-employment without any loss of benefits, status, or reduction in pay. These re-employment guarantees vary from state to state and usually contain a number of additional conditions. Typical conditions for reinstatement include:

• The employee was not dishonorably discharged from military service.
• The employee satisfactorily completed military service.
• The employee requested reinstatement within a specified time period.

If the employee is not able to do the job formerly held, the employer must offer an appropriate substitute position. If changes in the workforce make reinstatement unreasonable, the service person may not be entitled to reemployment with this employer.