Military leave protections are among the strongest employee protections in employment law. Yet many employers still misunderstand how the rules work—especially when federal protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA) intersect with California law.

A recent lawsuit filed against a California public employer illustrates how quickly military leave issues can escalate into litigation when these rules are not handled carefully.

Military Leave Protections Are Broad—and Mandatory

USERRA is a federal law that protects employees who perform service in the uniformed services. It applies to virtually all employers, regardless of size, and covers a wide range of military obligations.

Protected service includes:

• Active duty
• National Guard and Reserve service
• Military training and drills
• Fitness-for-duty examinations
• Funeral honors duty

If an employee is absent from work because of qualifying military service, USERRA generally requires employers to allow the leave and protect the employee’s job rights.

Importantly, military leave is not discretionary. Employers cannot deny qualifying leave simply because it is inconvenient for business operations.

The “Escalator Principle”: Reemployment Rights After Military Service

One of the most significant features of USERRA is the employee’s right to reinstatement following military service.

Under what is commonly referred to as the “escalator principle,” employees must be returned to the position they would have held if their employment had continued uninterrupted.

Depending on the circumstances, this may mean reinstatement to:

• The same position
• A higher position the employee would have attained through normal progression
• A comparable role with equivalent pay, status, and seniority

Employers may also be required to provide training or other reasonable efforts to help returning service members requalify for their positions.

Military Service Cannot Be Used Against an Employee

USERRA also contains strong anti-discrimination protections.

Employers may not take adverse action against an employee because of:

• Past military service
• Current military obligations
• Future military commitments

This protection applies to hiring, promotions, discipline, termination, and other employment decisions.

Even subtle workplace hostility toward military obligations can create risk if military service is shown to be a motivating factor in an employment decision.

A Recent Example: The Angel Torres Lawsuit

A recent lawsuit filed in Sacramento illustrates how these issues can arise.

In Torres v. California Highway Patrol, the plaintiff—a member of the military—alleges that his employer violated USERRA after issues arose related to his military leave and employment status. As with many USERRA disputes, the case centers on whether the employee’s military obligations were improperly considered in employment decisions.

Although the case is still pending, it highlights an important point: military leave issues can quickly turn into high-stakes litigation if employers mishandle the situation.

USERRA claims are particularly risky because the law allows recovery of:

• Lost wages and benefits
• Liquidated damages for willful violations
• Attorneys’ fees and costs

California’s Additional Military Leave Protections

California law expands military-related employee protections even further.

For example, California provides military spouse leave for employees who work for employers with 25 or more employees. Eligible employees may take up to 10 days of unpaid leave when their spouse is deployed during a military conflict and returns home on leave.

California law may also provide broader protections in certain circumstances, which means employers must evaluate military leave issues under both federal and state law.

Practical Compliance Challenges

Military leave situations often create practical questions for employers, including:

• How much notice employees must provide before military leave
• How long positions must be held open during military service
• How reinstatement rights apply after extended service
• How military leave interacts with other leave laws or employer policies

These issues can become particularly complicated when employees perform intermittent service, which is common for National Guard members and reservists.

Best Practices

Employers can reduce legal risk by taking several proactive steps:

• Train HR professionals and managers on USERRA obligations
• Review leave policies to ensure they address military leave rights
• Avoid negative assumptions about employees with military obligations
• Carefully analyze reinstatement rights when service members return
• Seek legal guidance when complex military leave issues arise

The Bottom Line

Employees who serve in the military are entitled to strong workplace protections under federal and California law. When employers misunderstand or overlook those protections, the result can be costly litigation.

Understanding how military leave laws work, and responding appropriately when military obligations arise, is essential to staying compliant and avoiding unnecessary disputes.