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Summary of differences between federal and state regulations
The Uniformed Services Employment and Reemployment Rights Act (USERRA) does not provide protection to members of the National Guard serving the states, nor do such members receive the protections of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) (which was re-written in 2003 as the Servicemembers Civil Relief Act) when in state (rather than federal) service. The state protections listed below are in addition to protections under federal laws.
All employees of the state who are members of the National Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, and Coast Guard Reserve, shall be entitled to a military leave of absence from their respective duties, without loss of pay, when employed with or without pay in the active service of the state or of the United States.
Members who normally work or are normally scheduled to work 159 hours or more in three consecutive weeks and scheduled to work 24 hour shifts must receive a military leave of absence of 168 hours each calendar year. Members who normally work or are normally scheduled to work 120 hours or more but less than 159 hours in three consecutive weeks must receive a military leave of absence of 120 hours each calendar year. Members who normally work or are normally scheduled to work less than 120 hours in three consecutive weeks must receive a military leave of absence each calendar year equal to the number of hours they normally work or would normally be scheduled to work, whichever is greater, in three consecutive weeks. Such military leave of absence may be taken in hourly increments and must be in addition to the regular annual leave.
When the Governor of this state declares that a state of emergency exists and any of the persons named in the related section of the law are ordered to active service of the state, a state of emergency leave of absence will be granted until such member is released from active service of the state by competent authority. A military leave of absence must not be used during a state of emergency declared by the Governor. Other forms of leave may be granted. During a state of emergency leave of absence because of the call of the Governor, any official or employee subject to the applicable section of the law must receive his or her normal salary or compensation minus the state active duty base pay he or she receives in active service of the state. Governmental officers serving a term of office must receive their compensation as provided by law.
Nebraska has also adopted parts of the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and made them applicable to all persons employed in the state of Nebraska and to any person employed in Nebraska who is a member of the National Guard of another state and who is called into active service by the Governor of that state.
An employer may make a temporary appointment to fill any vacancy created by the absence of an officer or employee. Such officer or employee shall not be discharged from his or her former or new position without justifiable cause within one year after reinstatement.
Family Military Leave Act
“Family military leave” means leave requested by an employee who is the spouse or parent of a person called to military service lasting 179 days or longer with the state or United States.
“Employee” includes an employee of a covered employer who has been employed by the same employer for at least 12 months and has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave. Employee does include an independent contractor.
Any employer that employs between 15 and 50 employees shall provide up to 15 days of unpaid family military leave to an employee during the time federal or state deployment orders are in effect.
An employer that employs more than 50 employees shall provide up to 30 days of unpaid family military leave to an employee during the time federal or state deployment orders are in effect.
The employee shall give at least 14 days’ notice of the intended date upon which the family military leave will commence if leave will consist of five or more consecutive work days. Where able, the employee shall consult with the employer to schedule the leave so as to not unduly disrupt the operations. Employees taking family military leave for less than five consecutive days shall give the employer advanced notice as is practicable. The employer may require certification from the proper military authority to verify the employee’s eligibility for the family military leave requested.
During any family military leave, the employer shall make it possible for employees to continue their benefits at the employee’s expense. The employer and employee may negotiate for the employer to maintain benefits at the employer’s expense for the duration of the leave.
Employee benefits means all benefits, other than salary and wages, provided or made available to employees by an employer and includes group life insurance, health insurance, disability insurance, and pensions, regardless of whether benefits are provided by a policy or practice of an employer.
State
Contacts
None.
Regulations
Nebraska Revised Statutes §55-160, Military leave of absence without loss of pay; limitations.
Nebraska Revised Statutes §55-161 Military leave of absence; rights of officer or employee.
Family Military Leave Act, Nebraska Revised Statutes §§501-507
Federal
Contacts
DOL’s Veterans’ Employment and Training Service (VETS)
Veterans’ Employment and Training Service (VETS)
200 Constitution Avenue, NW
Room S-1325
Washington, D.C. 20210
Phone: 1-866-4-USA-DOL (1-866-487-2365) or 202-693-4770
Website: www.dol.gov/vets/
Regulations
5 CFR Part 353 Restoration to Duty from Uniformed Service or Compensable Injury
20 CFR Part 1002 Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994