This decision offers an important compliance reminder for employers: state laws may, and often do, provide more robust protections than USERRA, even by implication. The New Jersey provisions at issue do not expressly cap unpaid military leave or incorporate USERRA’s five-year service limit. Employers should not assume USERRA applies. Before taking an adverse employment action, employers should escalate to understand the implications of applicable state and federal requirements.
BACKGROUND
Brian McDevitt, a member of the United States Air Force National Guard since 2000, began working for the Atlantic City Police Department (ACPD) in 2012. During his tenure, McDevitt was called to active military service several times, with Atlantic City providing him military leave and continuing his pension contributions. By September 2022, McDevitt accumulated 5.43 years of military service.
Believing that USERRA imposed a five-year cumulative service limit, Atlantic City directed McDevitt to return to work, retire, or resign. When he did not comply, the city terminated his employment on the grounds of insubordination, conduct unbecoming a public employee, and job abandonment. McDevitt appealed to the state’s Civil Service Commission. An administrative law judge then ruled in his favor. The Civil Service Commission adopted that ruling, ordered reinstatement and related relief, and the city appealed.
THE NEW JERSEY APPELLATE DIVISION’S ANALYSIS AND HOLDING
The Appellate Division addressed two central questions: whether USERRA’s five-year cumulative service limit preempts more generous state-law protections, and whether New Jersey law provides public employees with protected unpaid military leave beyond the federal period. Although the case involved a New Jersey law specific to public employees, the court’s non-preemption holding and its reasoning concerning protections beyond USERRA’s five-year limit have broader implications for employers.
On preemption, the court held that USERRA does not preempt state laws providing greater military leave protections. The court relied on 38 USC § 4302(a), which states that “[n]othing in this chapter shall supersede, nullify or diminish any Federal or State law … that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chapter.”
Conversely, 38 USC § 4302(b) preempts only state laws that “reduce[], limit[], or eliminate[]” rights or benefits guaranteed by USERRA. The court also cited federal regulations and case law confirming that USERRA “establishes a floor, not a ceiling” for service members’ employment protections. Accordingly, federal protections do not preempt more generous state military leave protections.
Turning to New Jersey law, the court interpreted NJSA 38A:4-4, which entitles public employees who are members of the organized militia to leave “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,” with paid leave capped at 90 workdays per calendar year, and unpaid leave beyond that threshold. The court found that the mandatory and indefinite language in that provision—at least as related to unpaid leave—coupled with its silence on the USERRA five-year limit, demonstrated that the unpaid leave provision did not impose a cumulative limit on its duration. The court also cited the state statute’s accompanying regulations that likewise do not cap unpaid military leave. Accordingly, the court declined to weave USERRA’s five-year limit into the statute.
Although the court did not decide whether the statute or its accompanying regulations conferred “unbounded leave and a perpetual right to reemployment,” it held that McDevitt’s 0.43 years of leave beyond USERRA’s 5-year limit was protected under the New Jersey law. As a result, the court affirmed the Civil Service Commission’s decision.
BROADER APPLICABILITY: A REMINDER FOR EMPLOYERS NATIONWIDE
This New Jersey appellate decision reinforces a nationwide compliance lesson: USERRA provides a minimum level of protection, but states may adopt more generous provisions. Beyond the differences between federal and state military leave protections, military leave laws also vary considerably from state to state. Some states—including New Jersey—do not expressly impose a cumulative limit on unpaid military leave. These variations are not limited to the duration of leave, as states may also provide additional rights and benefits not required under USERRA or comparable laws in other states.
Beyond New Jersey, the state law landscape illustrates why a uniform five-year rule may be insufficient. Military leave protections in several states, including, but not limited to, Connecticut, Pennsylvania, Georgia, North Carolina, South Carolina, California, Washington, and Arizona, do not expressly prescribe a cumulative limit for private-sector military leave. As demonstrated in the New Jersey appellate court’s decision, this statutory silence may be equated with an affirmative right to additional protections beyond what federal law requires; case-specific analysis is necessary.
Additionally, at least one other state explicitly provides unpaid military leave beyond the federal five-year limit. Colorado offers reemployment protections for qualifying private-sector Colorado National Guard employees absent for state active service “regardless of the length of the absence,” subject to applicable statutory requirements. Colo. Rev. Stat. § 28-3-610.5. Other states, including Oregon and Massachusetts, carve out from USERRA’s five-year limit certain state military service not included in the federal statute’s exceptions. See Or. Rev. Stat. § 659A.082(4)–(5); Mass. Gen. Laws ch. 33, § 13(g).
RECOMMENDATIONS
These statutes show that state laws can omit a cumulative cap, expand specific exclusions, or expressly protect particular service without regard to the duration of service. Therefore, all employers should consider applicable state statutes and regulations before taking adverse employment actions based on USERRA’s five-year limit.
Employers should review their military leave policies against both USERRA and each applicable state-law regime. Consider revising military leave policies where laws in those states provide greater protections than USERRA.
Human resources and managers should take care to distinguish federal and state military leave rights and to flag extended or repeated service-related absences for legal review. Before characterizing an absence as insubordination, job abandonment, or another policy violation, escalate the matter to assess the applicable federal and state protections.
CONCLUSION
The New Jersey Appellate Division’s decision reinforces that USERRA sets a floor, not a ceiling, for military leave protections. Although the ruling concerns public employees, its implications extend to private employers in states with broader protections. Employers should assess applicable state laws and not rely exclusively on USERRA.
