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elaws - employment laws assistance for workers and small businesses - USERRA Advisor

Vacation accruals, that is, the actual receipt of vacation time benefit itself rather than the rate at which an employee accumulates the benefit, is not usually tied to seniority. For example, a person returning from three years of service may have passed a time benchmark where that person is entitled to build vacation at an increased rate (e.g., from one week a year to two weeks per year), but that person would not return to find three years back vacation waiting.

If an employer allows accrual of vacation for employees who are on a comparable furlough or leave of absence, then a person of similar seniority, status and pay who is absent for uniformed service is entitled to the same benefit, because USERRA treats the individual as being on furlough or leave of absence while performing uniformed service. See 20 CFR Part 1002.150.

USERRA requires an employer to allow an individual to use earned vacation credits while absent for service, providing that usage is at the employee's request. An employer may not require the use of vacation for a service absence, unless the absence coincides with a period, such as a plant shutdown, when ALL employees are required to take vacation. See 20 CFR Part 1002.153.

Call your local VETS office for further details on this issue. If you think your situation warrants a complaint, please review the instructions on how to file a complaint form. You will find a link to the form on the instructions page. The Veterans' Employment and Training Service will investigate complaints and attempt to resolve them. Persons whose complaints against non-Federal employers are not resolved by VETS may request that their complaints be submitted to the Attorney General for possible representation in Federal court. Unresolved complaints against Federal employers will, upon request, be referred to the Office of Special Counsel for possible representation before the Merit Systems Protection Board.

NOTE: In federal cases involving nonselection or layoffs, a person may wish to file complaints under both the USERRA and Veterans' Preference (VP) statutes. If you think that this situation applies to you, you must submit a separate complaint form for each statute allegedly violated (i.e., one for USERRA and one for VP). When this situation occurs, VETS will open two separate cases for investigation.

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