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U.S. Department of Labor For: Immediate Release
Veterans' Employment and Training Service Date:
Washington, DC Contact: Gordon Berg
USDL: Phone (202) 693-4745

USERRA Protects Family and Medical Leave Rights of Reservists and National Guard Labor Department Reminds Employers Military Service Time Counts Toward Eligibility

WASHINGTON - With thousands of National Guard and reservists returning to their civilian occupations after temporary duty in support of the President's declaration of a national emergency following the attacks of September 11, the Department of Labor is reminding employers that, based on the Uniformed Services Employment and Reemployment Rights Act (USERRA), time spent on active duty should be included when considering the eligibility of an employee for leave under the Family and Medical Leave Act (FMLA).

The Solicitor of Labor, the Assistant Secretary for Veterans' Employment and Training, and the Wage and Hour Administrator have issued a joint memorandum that makes clear the Department's position regarding the rights of returning uniformed service members to family and medical leave under USERRA. The memorandum says that the months employed and the hours actually worked for the civilian employer should be combined with the months and hours that would have been worked during the 12 months prior to the start of the leave requested but for the military service.

"Recognition of the rights and responsibilities established by USERRA will ensure that those who stood ready to serve our nation can return to their civilian jobs with all the legal benefits that they have earned," said Frederico Juarbe Jr., Assistant Secretary of Labor for Veterans' Employment and Training. "All staff of the Veterans' Employment and Training Service (VETS) and the Wage and Hour Division (WHD) will follow the guidance in this memorandum when dealing with inquiries involving family and

medical leave rights of such service members."

Under USERRA, returning service members are entitled to all the benefits of employment that they would have obtained if they had been continuously employed. Under FMLA, an eligible employee must work for a covered employer, have worked for his or her employer for at least 12 months and must have worked at least 1,250 hours for that employer during the 12-month period prior to the start of the leave.

A member of the National Guard or Reserve who is absent from employment for an extended period of time due to military service and who requests FMLA leave shortly after returning to civilian employment may not have actually worked for his or her employer for a total of 12 months or may not have performed 1250 hours of actual work with the employer in the 12 months prior to the start of the FMLA leave. The memorandum clarifies that, based upon the service member's USERRA rights, the time and hours that the employee would have worked but for his or her military service should be combined with the time employed and the hours actually worked for an employer to meet the 12-months of employment and the 1250 hours eligibility requirements.

Questions about eligibility should be referred to the state director of Veterans' Employment and Training Services which can be found at www.dol.gov/vets or to the local office of the Wage and Hour Division which can be found at www.dol.gov/whd/ or by calling its toll free number at 1-866-487-9243