Quick Hits
- The New Jersey Superior Court Appellate Division recently ruled that USERRA does not preempt the state’s more expansive protections for military leave.
- In this case, the Atlantic City Police Department fired a police officer after he exceeded USERRA’s five-year limit for protected military leave.
- The court rejected the city’s contention that New Jersey law stops protecting a servicemember after five years of leave.
USERRA provides a cumulative total of up to five years of job-protected military leave with one civilian employer when servicemembers are called to duty. USERRA supersedes any local law, state law, or employment contract that would reduce the time or benefits provided under USERRA, and its regulations specify that it establishes a floor, not a ceiling, for the rights of those it protects.
A recent New Jersey case highlights the importance of USERRA’s deference to more expansive state law protections for servicemembers. New Jersey’s military leave laws are more expansive than USERRA and require that employees of state entities who are servicemembers “shall be entitled, in addition to pay received, if any, as (servicemembers), to leave of absence from his or her respective duties without loss of pay or time on all days during which he or she shall be engaged in any period of state or federal active duty.” The same statute clarifies that any such leave of absence beyond ninety days may be unpaid.
In In re: McDevitt, the New Jersey Superior Court Appellate Division held that the more expansive New Jersey law was controlling.
Background on the Case
Atlantic City Police Officer Brian McDevitt accrued 1,982 days (or approximately 5.43 years) of military leave while employed by the Atlantic City Police Department. During McDevitt’s deployments, the city paid him for up to ninety workdays of military leave per calendar year and, under city policy, paid him the difference between his military pay and his regular police pay for the rest of each deployment. During one of McDevitt’s deployments in December 2022, the city informed him that his military orders exceeded the five-year cumulative service limit under USERRA, and that he must return to work, resign, or retire by February 1, 2023.
McDevitt responded that his continued leave was protected under New Jersey law and that he intended to return to the police department after completing his deployment. On May 2, 2023, the city served him with a letter seeking his removal and charging him with insubordination, conduct unbecoming a public employee, and job abandonment. The city terminated McDevitt’s employment on January 26, 2024.
McDevitt appealed to the New Jersey Civil Service Commission, which overturned the Atlantic City Police Department’s decision and ordered his reinstatement with mitigated back pay, benefits, seniority, and counsel fees. The city appealed to the Appellate Division of the Superior Court of New Jersey. It argued that USERRA’s five-year cumulative service limit preempts federal, state, and local laws and that New Jersey’s military leave statute does not provide for unlimited cumulative service that supersedes USERRA’s five-year limit. In other words, the city argued that New Jersey law does not protect a servicemember from discharge once that employee has passed USERRA’s five-year minimum.
Court’s Ruling
The Appellate Division affirmed the commission’s decision “in all respects.” The court held that USERRA does not preempt state laws that afford greater protection than USERRA’s five-year cumulative service limit. The court rejected the city’s preemption argument based on USERRA’s plain language that it specifically does not supersede, nullify, or diminish any state law that establishes rights or benefits for servicemembers greater than those provided by USERRA.
The court also rejected the city’s argument that New Jersey’s military leave law stops protecting a servicemember after five years of leave. It noted that N.J.S.A. 38A:4-4 “expresses no temporal limitation on the length of military leave it protects” and provides only that leave beyond ninety workdays per calendar year is unpaid.
The court stopped short of deciding whether New Jersey law confers “unbounded leave and a perpetual right of reemployment.” Instead, it resolved only whether the police officer’s additional 0.43 years of leave beyond USERRA’s five-year minimum justified his discharge for “insubordination” and “conduct unbecoming a public employee.” The court called those characterizations of his absence while serving the country “inapt” and “antithetical to the declared purposes of our federal and state military leave laws.”
New Jersey state law allows servicemembers up to ninety days within which to apply for private reemployment after completion of service, regardless of the length of such service. By contrast, USERRA only allows the same ninety-day allowance if the servicemember’s period of service lasts for more than 180 days. Otherwise, USERRA requires a servicemember to report to the next regularly scheduled work period if the period of service is thirty days or less, or within fourteen days if the period of service is between thirty-one and 180 days.
Next Steps
Employers may wish to assess their policies and practices affecting servicemembers to ensure compliance with USERRA and state military leave laws. New Jersey state law may be open-ended as to its cumulative service limit for servicemembers employed by public entities.
USERRA’s five-year cumulative service limit is also not as straightforward as it may appear, since there are numerous statutory exceptions for certain types of service. Other state law requirements may apply.
Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments and will post updates on the Leaves of Absence, Military Workforce, and New Jersey blogs as additional information becomes available.
In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state and federal laws around Military Leave, including New Jersey Military Leave. Premium-level subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.
Michael J. Nacchio is a shareholder in Ogletree Deakins’ Morristown office.
Alysonne O. Hatfield is of counsel in Ogletree Deakins’ Birmingham office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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