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April 19, 2016

Accruing vacation and sick leave credits during leave for ordered military leave

Accruing vacation and sick leave credits during leave for ordered military leave
Andrews v State of New York, 2016 NY Slip Op 02895, Appellate Division, Third Department

An employee of the State as the employer absent from his or her position while on “ordered military duty,” is placed on military leave* from his or her position in accordance with provisions in the State Military Law and the Rules of the State Civil Service Commission. While on such military leave Rules of the State Civil Service Commission provided that the employee does not accrue vacation or sick leave credits unless he or she is "in full pay status for at least seven workdays during [the] biweekly pay period" during such absences for ordered military duty.**

A number of current and former employees [Claimants] of the State Department of Corrections and Community Supervision [Department], absent during various periods of ordered military duty, demanded that the Department credit them with the vacation and sick leave credits that they would have otherwise accrued had they not been absent on such ordered military duty. 

The Department ultimately denied there request and Claimants sued the Department seeking, among other things, a declaration that the denial of vacation and sick leave accruals during their respective periods of military leave violated both the Uniformed Services Employment and Reemployment Rights Act, 38 USC §4301 et sec, [USERRA]), and §242 of the State’s Military Law and sought a court order directing the Department to calculate and credit the amount of vacation and sick leave accruals that they would have otherwise earned but for their absences for ordered military service.

Supreme Court, concluding that [1] the State of New York did not waive its sovereign immunity with respect suit founded on alleged violations of USERRA; [2] that only those claims arising within the four-month statute of limitations applicable to CPLR Article 78 proceedings were timely; and, in any event, [3] the Claimants failed to state a cause of action.  In response to Claimant's appeal of Supreme Court's dismissal of  their petition, the Appellate Division affirmed the lower court’s ruling.

Reviewing of the applicable state and federal statutory and regulatory provisions, the court noted that, with respect to the relevant State law, rules and regulations:

1. An employee in state service "shall not earn" either annual or sick leave credits "for any biweekly pay period unless he [or she] is in full pay status for at least seven workdays during such biweekly pay period" (4 NYCRR 21.2 [b] [1]; 21.3 [b]).***

2. A state employee who is ordered to military duty is entitled to take a leave of absence for such purpose and, consistent with the provisions of Military Law §242 (5), is entitled to be paid his or her salary and other compensation for a specified number of days.

3. Upon the exhaustion of the military leave with pay authorized by Military Law §242(5), certain eligible state employees "shall be granted supplemental military leave with pay for a period or periods not exceeding a total of 30 calendar days or 22 working days, whichever is greater" (see 4 NYCRR 21.15 [a]; 4 NYCRR 21.16). Once that employee has exhausted those available options and, thus is no longer is on full pay status, he or she — consistent with the requirements imposed by 4 NYCRR 21.2 (b) (1) and 21.3 (b) — no longer accrues such credits.

With respect to federal law, the Appellate Division noted that:

1. USERRA prohibits an employer from denying a member of the uniformed services "initial employment, reemployment, retention in employment, promotion, or any benefit of employment" based upon, among other things, such member's performance of military service (38 USC §4311 [a]).

2. USERRA further provides that "a person who is absent from a position of employment by reason of service in the uniformed services shall be . . . deemed to be on furlough or leave of absence while performing such service . . . and . . . entitled to such other rights and benefits not determined by seniority as are generally provided by the employer . . . to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service" (see 38 USC §4316 [b] [1]; 20 CFR 1002.150 [a]).

3. Generally speaking, "accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence" [emphasis supplied by the Appellate Division].

4. In the event "the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services" [emphasis supplied by the Appellate Division].

For purposes of determining whether two forms of leave are comparable, the Appellate Division said “consideration should be given to the purpose of the leave and the employee's ability to choose when to take the leave, with the duration of the leave being the most significant factor.”

Addressing Claimants’ allegations that the Department violated 38 USC §§4311(a) and 4316(b) when it denied them vacation and sick leave accrual credits during their respective periods of military duty benefits, the court said that Claimants contended were denied benefits provided to state employees on allegedly comparable leaves of absence. However, said the court, Complainants “did nothing more than assert in a conclusory fashion — and without reference to the allegedly applicable statutory or regulatory provisions — that such accruals and credits were ‘generally provided by the [s]tate . . . to such employees on [w]orkers' [c]ompensation [l]eave, jury duty, bereavement, and extended sick leave/[Family Medical Leave Act].’”

Further, the court noted that:

1. “[A]bsent from the petition was any evidence … that state employees who were absent from work due to one of the cited forms of leave did in fact accrue vacation and/or sick leave credits even if they were not ‘in full pay status for at least seven workdays during [the relevant] biweekly pay period;’” and

2. The Claimants’ petition did not set forth any factual assertions demonstrating that the leaves of absence they claimed were “comparable leaves of absences” -- workers' compensation, jury duty, bereavement and extended sick leave - are, in fact, comparable in terms of purpose and duration to the military/supplemental military leaves available to Claimants.

Absent such factual allegations, the Appellate Division ruled that Claimants' allegations of violations of USERRA cannot stand.

The court said it reached a similar conclusion with regard to Claimants’ allegations of violation of Military Law §242(4). 

Although §242(4) prohibits an employer from subjecting an employee on a leave of absence due to ordered military duty "to any loss or diminution of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence," the Appellate Division pointed out that “state employees on military leave/supplemental military leave (such as [Claimants]) are entitled to be paid for certain specified periods of time, and the parties do not dispute that such employees also may utilize certain accrued leave credits to extend their full pay status.”

While on full pay status, explained the court, "employees on leave for military service — like any other full pay status state employee — continue to accrue vacation and sick leave credits". However, "once employees on leave for military service exhaust their options to remain in full pay status, they — like all other state employees on unpaid leave — no longer accrue vacation and sick leave credits."

Finding that Claimants failed to demonstrate that they were treated differently than any other state employee on an unpaid leave of absence, the Appellate Division ruled that Supreme Court correctly concluded that Claimants failed to state a cause of action and properly granted the Department’s motion for summary judgment dismissing the Article 78 petition in its entirety.

* Military Leave is leave without pay except as otherwise provided by State law, rule or regulation.

** See 4 NYCRR 21.2[b][1]; 21.3[b]

*** Employees absent on leave for ordered military leave may elect, but may not be required, to use vacation, overtime and similar leave credits to remain on the payroll until such leave credits are exhausted.

The decision is posted on the Internet at:


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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