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. For information related to USERRA, please visit https://lawforveterans.org/work/71-hiring/387-understanding-the-uniformed-services-employment-and-reemployment-rights-act.
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 (Absence from Employment for Military Duty Act) and (Employment Discrimination Against National Guard Members Act) work together to protect the jobs of service members called by the military.
How does the Absence from Employment for Military Duty Act 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 the Employment Discrimination Against National Guard Members Act protect me?
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 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 on 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. 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 (NDMS) are provided time-off until they are released from NDMS active duty.
During NDMS active duty, the employee may minus the amount paid by the government for active duty. Employees are not allowed to collect annual and sick leave during active duty.
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.
- Race
- Color
- Nation origin
- Religion
- Sex (including pregnancy, childbirth, and related medical conditions)
- Disability
- Age (40 and older)
- Citizenship status
- Genetic information
:
- 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 a person may bring a complaint:
- Administrative (handled by the United States Department of Labor, VETS), or
- 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
- Review the information on , to determine if there is a valid case for complaint.
- Speak with an Ombudsman at the (ESGR): 1-800-336-4590 (option 1), Monday – Friday, 8:00am to 6:00pm (EST).
- 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):
- Fill out and submit the complaint form in one of following ways:
- and mail a copy of the completed form to:
- 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.
Bringing Litigation
When ESGR or VETS are not able to resolve a complaint, that their complaint be sent to the U.S. (for private/state employees) or to the (for federal employees). These agencies may enforce USERRA in federal court or before the 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:
- Federal Employee: File an appeal with the Merit Systems Protection Board
- State Employee: File a civil lawsuit in a
- Private Employee: File a lawsuit in the .
