Overview of Arizona's Time Off Laws for Military Personnel

Service members who receive orders for deployment or military training should not be too concerned about a possible loss of employment due to their time away. 

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides time-off and employment reinstatement for those called to active duty. This includes members of the Air Force, Army, Coast Guard, Marines, National Guard, Navy, Reservists, and Space Force.

Learn more about USERRA.

In addition, Arizona has passed state laws that further protect the job of service members who are called to active duty.  

Which Arizona laws protect my job if I get orders from the military? 

Arizona laws A.R.S. § 26-168  (Absence from Employment for Military Duty) and A.R.S. § 26-167 (Employment Discrimination Against National Guard Members) work together to protect the jobs of service members called by the military. 

How does the Absence from Employment for Military Duty protect me? 

A.R.S. § 26-168 extends the following protections to members of the National Guard or U.S. Armed Forces Reserves: 

  • Employers may not prohibit service members from taking a leave of absence from employment due to following competent orders. Competent orders are orders issued by the National Guard or any of the Armed Services to report to duty, training, or drills. 
  • Service member’s time on military leave may not impact an employee’s vacation rights. However, an employer is allowed to count the absences during military leave for calculating an employee’s eligibility for vacation time and pay. 
  • Members of the National Guard or the U.S. Armed Forces Reserves may not lose seniority while away. 
  • When service members return from military service, an employer should allow the employee to receive their previous role.  
  • Employers may also place returning service members in a role of higher status which they would have earned and be qualified for if it had not been for their military leave. 

A.R.S. § 26-168 also addresses State Employees who are National Guard or U.S. Armed Forces Reserves: 

  • May take leave of absence from employment due to competent orders without losing seniority, pay, or efficiency rating.  
  • Their time during active duty should not be deducted from any vacation time they have earned. 
  • Should be given 15 days of paid military leave each year or 30 paid days within two years.  

Prohibited practices under the A.R.S. § 26-168 include: 

  • Not allowing members of the National Guard or the U.S. Armed Forces Reserves from following competent orders, and 
  • Not allowing a service member return to the position they held before receiving a competent order. 

A person who violates these protections may be guilty of a class 1 misdemeanor (A.R.S. § 26-168 (E)). These matters are held in Superior Court. 

How does  Employment Discrimination Against National Guard Members protect me? 

A.R.S. § 26-167 extends the following protections to members of the National Guard: 

  • Employers may not create barriers that would prevent or obstruct National Guard members from obtaining employment in that trade or profession. 
  • Employers may not threaten any employees (military or not) with pay cuts or other negative actions that are meant to discourage someone from enlisting in the National Guard or the Armed Forces. 

A person who violates these protections may be found guilty of a class 2 misdemeanor (A.R.S. § 26-167 (B)).

Will I lose my job if I follow military orders that require me to leave my job temporarily?  

If the service member receives a competent order and provides proper notice to their employer, their job should remain protected under the USERRA and A.R.S. §§ 26-167-68. 

If I receive competent orders, does this mean my employer can find a replacement for my job? 

An employer may seek a replacement to fulfill a service member’s duties while away in leave of absence. However, for service members who are returning from active duty they should be allowed to receive their position back. They may also be placed in a higher position which they would have earned if it had not been for the competent order. (A.R.S. § 26-168) 

When I return from military leave can my employer place me back but in a lower position? 

No, the service member’s job and position should be in place when they return from active-duty. A.R.S. § 26-168 prohibits employers from placing returning employees in a lower position that they once had. If an employer is unable to give the employee their same job back, they are required to give them a position at the same or higher level within the company.  

Will I continue to get paid by my employer if I receive a competent order 

Service members employed by the State of Arizona are provided military leave, based on the average number of regularly scheduled work hours. (A.R.S. § 38-610) Contact Human Resources to learn more specifics about what military leave you are allotted under A.R.S. 38-610(C)(3). 

Arizona employees who are called up by the National Disaster Medical System (NDMS) are provided time-off until they are released from NDMS active duty. 

During NDMS active duty, the employee may receive their regular salary from their employer minus the amount paid by the government for active duty. Employees are not allowed to collect annual and sick leave during active duty. (A.R.S. § 38-610.02) 

Within 60 days of completing active duty, employees are required to prove that they were released with honorable service. If the employee does not provide documentation, they may be required to pay the State back for money received while on active duty. 

If I am not a State employee is my employer required to pay me for my military leave days? 

Neither USERRA nor Arizona State law require employers to give paid military leave. It is up to the employer to as to whether they will pay an employee on military leave.  

Can employers choose not to hire service members? 

Service members by state and federal law are not a protected class and employers may take military status into consideration when hiring. There are programs that provide incentives for employers to hire service members and veterans. 

While USERRA, the Absence from Employment for Military Act, and the National Guard Antidiscrimination Act protect service members from being fired from their job following competent orders, they do not create a protected status for service members.  

Federal law makes it illegal to discriminate based on: 

  • Race 
  • Color 
  • Nation origin 
  • Religion 
  • Sex (including pregnancy, childbirth, and related medical conditions) 
  • Disability 
  • Age (40 and older) 
  • Citizenship status 
  • Genetic information 

In Arizona it is illegal to discriminate against: 

  • Race  
  • Color 
  • National Origin 
  • Sex 
  • Religion/Creed 
  • Age (40 years or older) 
  • Physical/mental disability 
  • Pregnancy 
  • Retaliation 

What if I am employed in Arizona, but I am part of the National Guard in a different state? 

Arizona State law protects the jobs for  National Guard members from Arizona or any other state to follow competent orders. (A.R.S. § 26-168) 

For instance, if a person is enlisted in the California National Guard and works in Arizona, their job is protected if they receive orders to assist in an emergency in California. 

What do I do if I am not given my job back or fired while on active duty? 

If the employer violated USERRA, there are protections and steps on what to do for when an employer does not reemploy a service member who returns from a competent order or who is fired while on active duty.  

There are two different ways a person may bring a complaint: To submit a claim, there are  

  1. Administrative (handled by the United States Department of Labor, VETS), or 
  2. Litigation (handled by the Department of Justice or the Office of Special Counsel). 

If a claim is successful a service member may:  

  • Return to a job, 
  • Receive back pay, 
  • Have benefits restored, 
  • Get their personnel file corrected, 
  • Promotional opportunities restored, 
  • Receive retroactive seniority, 
  • Have a pension adjustment, and/or 
  • Get vacation time restored.

Administrative Claims: 

Service members have the option to pursue an informal or formal complaint against their employer. 

To begin an informal complaint: 

  1. Review the information on the USERRA elaws Advisor first, to determine if there is a valid case for complaint.  
  2. Speak with an Ombudsman at Tthe Employer Support of the Guard and Reserve (ESGR): 1-800-336-4590 (option 1), Monday – Friday, 8:00am to 6:00pm (EST).
  3. If the Ombudsman thinks it is appropriate, participate in a mediation with the Ombudsman and the employer (when appropriate).

Service members mays also submit a formal complaint with the Veterans Employment and Training Services (VETS): 

  1. Fill out and submit the complaint form in one of following ways: 
    1. online through VETS or  
    2. Download and mail a copy of the completed form to: 
      1. Veterans’ Employment and Training Service (VETS) 
        Attention: VETS1010 
        200 Constitution Ave NW 
        Room S-1325 
        Washington, DC 20210 
        Email: This email address is being protected from spambots. You need JavaScript enabled to view it.Fax: 404-562-2313 
  2. In person at a regional VETS office. Once an application is received an application is received VETS will attempt to resolve the matter with the employer on behalf of the service member. 

NOTE: VETS has investigation and resolution authority, but limited enforcement power. An employer may dispute VETS’ investigative findings or choose to continue to not comply with USERRA.

Bringing Litigation: 

When ESGR or VETS are not able to resolve a complaint, service members may request that their complaint be sent to the U.S. Attorney General (for private/state employees) or to the Office of Special Counsel (for federal employees). These agencies may enforce USERRA in federal court or before the Merit Systems Protection Board for federal employees.  

Service members may also file a private action, to get the employer to comply with USERRA. Where to file a case depends on who employed the service member: 

Can the State of Arizona enforce my protections for reemployment? 

Arizona law states that if an employer does not provide a returning service member their job back or fires them while on active duty, the county attorney may prosecute the employer in superior court. Contact the local county attorney to learn their process for filing a complaint. 

 

This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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