?San Francisco recently passed a law that allows employees who are members of the U.S. military to take paid military leave for one or more days at a time for up to 30 days per year. It requires employers to pay active military members the difference between their military pay and the amount they would have received from their employer working their regular schedule while they are on military duty.
Private-sector employers are covered by the law if they have 100 or more employees, regardless of where they work. Employees are eligible if they work in San Francisco and are members of the U.S. Reserve Corps, the National Guard or other uniformed service organization. They aren’t eligible if they’re covered under a collective bargaining agreement that waives the leave requirements.
The ordinance will take effect on Feb. 19.
Recent emergencies sparked the city’s interest in guaranteeing paid military leave.
“For the past two years, there has been an increase in the use of the National Guard for domestic missions, ranging from COVID-19 mitigation to wildfire suppression and domestic disturbance responses,” said Ronak Patel, an attorney with the Mitzel Group in Walnut Creek, Calif. “There are approximately 2,000 reservists who live in San Francisco, and many had to report to wildfire duty [and] domestic disturbances in addition to completing their three-week annual training. As a result, military service members were losing income to support themselves and their families. This ordinance helps protect military and armed forces members from losing income for serving their community and/or country.”
“With the ordinance, San Francisco aims to increase income and employment security for private-sector employees when they perform military service,” said Sebastian Chilco and Wendy Buckingham, attorneys with Littler in San Francisco and Philadelphia, in a joint statement. “[The city] noted a higher-than-average suicide rate for military reservists, that suicide risk factors are not limited solely to an individual’s military service, and that often employees might experience financial hardship when performing military service because they would earn less than they do at their private-sector job.”
San Francisco’s ordinance differs from state and federal law in this area. “The biggest difference is that San Francisco’s ordinance requires paid leave, whereas state and federal military leave [laws] require unpaid leave for employees who are members of the military or armed forces when they are called for active duty or training,” Patel said.
While military leave is generally considered unpaid leave, there are some circumstances in which the federal Uniformed Services Employment and Reemployment Rights Act does require employers to pay their employees during a military-related absence.
Employers that violate the city ordinance may be required to pay any unlawfully withheld supplemental compensation, interest and liquidated damages equaling $50 for each day the violation occurred or continued to each individual whose rights were violated. Relief could also include the amount of unlawfully withheld supplemental compensation multiplied by three or $250, whichever is higher.
Logistical Steps
The city law doesn’t prescribe an official process for handing requests for paid military leave. It “does not address critical issues like how employees must request pay, how employers verify an employee’s gross military pay or how to calculate the amount of supplemental compensation due,” said Chilco and Buckingham. “Although, historically, employees who went on military leave could ask their employers to let them use available accrued vacation, annual leave or similar leave the employee personally might have during what otherwise would be an unpaid leave, the new San Francisco law requires employers, rather than employees, to convert part of the absence from unpaid to paid.”
To be prepared, employers should discuss with “HR, payroll and legal about how to manage military-duty absences and how they might need to deal with requests for supplemental compensation if there is not an official process in place on Feb. 19,” Chilco and Buckingham said.
Employers with workers in San Francisco should review their leave policies and update their employee handbook to include the new ordinance. “Audit your employee roster and determine who is a military or service member,” Patel recommended. “If you don’t have this data, now may be the time to determine that status with your employees. If you do employ military members [who] work in San Francisco, then survey their salary and determine what differential pay would be owed to them if they were to go on military leave or training under the ordinance.”
Employers may need to ask workers for a copy of their leave and earnings statement from the military. Companies can find military pay calculators online but should keep in mind that military salaries depend on rank and years of service. Individuals may receive additional military compensation, such as hazardous duty incentive pay, hostile fire pay or imminent danger pay.
If the person does not return to their position within 60 days of release from military duty, the employer can treat the already-provided supplemental compensation as a loan payable with interest.