Military leave - Wisconsin

Summary of differences between federal and state regulations

The federal 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.

Under Wisconsin law, any person in active service in the U.S. armed forces, and any person whose services are requested by the federal government for national defense work as a civilian during a national emergency, who leaves a position (other than a temporary position) shall be restored to that position or to a position of like seniority, status, pay, and salary advancement if all of the following conditions are met:

1. The person presents to the employer evidence of satisfactory completion of the period of training or civilian service, or of discharge from the U.S. armed forces under conditions other than dishonorable.
2. The person is still qualified to perform the duties of the position.
3. The person applies for reemployment and resumes work within 90 days after completion of the training or service or was discharged, or within 6 months after release from hospitalization for service-connected injury or disease.
4. The employer’s circumstances have not changed as to make it impossible or unreasonable to restore the person.
5. The military service was not for more than 4 years unless extended by law.

He or she shall be entitled to participate in insurance, pensions, retirement plans, or other benefits offered by the employer.

Any person who is a resident of this state and absent from a position because of active service is entitled to reemployment rights and benefits if all of the following apply:

1. The person or an appropriate officer in the national guard of this or another state or the state defense force has given advanced notice of the active service to the person’s employer.
2. The cumulative length of all absences from a position with the employer by reason of service does not exceed 5 years.
3. The person reports to the employer or submits an application for reemployment as required.
4. In the case of active service in the national guard in this or another state or the state defense force, the active service has not been terminated under other than honorable conditions.

No notice is required if the giving of that notice is precluded by military necessity or is otherwise impossible or unreasonable.

A person who is absent because of active service is entitled to receive all rights and benefits not determined by seniority that are generally provided to employees having similar seniority, status, and pay who are on furlough or leave of absence.

A person who is on leave of absence for service is not entitled to any benefit to which the person would not otherwise be entitled if continuously employed.

An employer may require such person to pay the employee cost, if any, of any benefit that is continued to the same extent of other employees who are on leave of absence.

Protection from discharge

An employer that reemploys a person whose period of active service lasted for more than 30 days, but less than 181 days, may not discharge the person within 180 days after the date of reemployment except for cause. An employer that reemploys under this section a person whose period of active service lasted for more than 180 days may not discharge the person within one year after the date of reemployment except for cause.

State

Contacts

None.

Regulations

Wis. Stat. Ann. §321.64, Reemployment after completion of federal active duty or service.

Wis. Stat. Ann. §321.65, Reemployment rights after national guard, state defense force, or public health emergency service.

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