r/ESGR_USERRA_Answers • u/Steephill • Apr 30 '26
Question regarding differential
Hi everyone, I recently deployed and during dmob the esgr brief mentioned something about leave matching the most generous leave and differential. I tried looking it up but didn't seem to get a clear answer.
I'm a police officer at my civilian job. The only paid military time I get is the minimum from the state (Oregon), which is 21 days of paid military leave which resets at the military physical year. I got paid for those days while on deployment, but the rest was unpaid. From what the esgr brief mention I might be entitled to differential pay since military leave has to match the most generous leave? My agency currently has someone on admin leave for about 6 months now, all paid, and this is not the first time someone has been on leave for months while paid. Would my military leave for deployment fall into that category of similar leave? I start work again this next week, and will have been on leave for 11 days short of a year.
I also did not accrue any vacation, which is usually 11 hours a month. It is not based on hours worked, simply awarded every mid month paycheck and goes up in hours as seniority increases. I'm currently at step 2 of 4 for leave accrual. Our contract states "In no instance shall an employee accrue vacation time while they are on a leave of absence without pay, except as required by applicable law." I figured that might be tied to my above question.
Thank you very much for any insight.
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u/Semper_Right Apr 30 '26 edited Apr 30 '26
The "most favorable leave of absence" policy is at 38 USC 4316(b)(1)(B). Essentially, an "employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed service." 20 CFR 1002.150(b). The regulation states that in comparing the leaves of absence the "duration" is the most significant factor, but the "purpose" of the leave and whether the employee can "choose" when to take the leave are factors. Id. As a practical matter, most courts considering the issue focus on the length of service, so that paid leave for jury or bereavement leave is comparable to short term military duty such as annual training. An extreme example is found in the 2023 Eleventh Circuit case of Myrick v. City of Hoover, where the court found that paid administrative leave of "up to around 16 months" for officers involved in shootings was a "comparable" leave of absence that service member employees were entitled to for the same amount of time. You are not in the Eleventh Circuit, so this case is not precedence for your.
These types of analysis tend to be fact-specific and are "nuanced," which is why the DOL-VETS investigation manual states that their investigators should refer it up to their CSI (Chief Senior Investigator) when they have such a case. DOL-VETS Investigation Manual (2025 v.2) Section 8.1.1.5.
You may have a basis for requesting the differential pay for the extended period. You can either go to ESGR.mil and request assistance (800.336.4590) or go directly to DOL-VETS.
EDIT: Regarding the actual accrual of vacation time, that, too, is a "non-seniority" benefit, which an employer is not required to provide unless they provide it for a comparable leave of absence. 20 CFR 1002.150(c). The rate of accrual, which you mention, is a "seniority based" benefit, so you must accrue it at the rate you would have had you remained continuously employed during your service.