Military Leave Rights in Wisconsin: USERRA & State Protections

The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq., is the primary federal statute protecting military service members. USERRA applies to all employers in the United States, including private employers, public agencies, and federal employees, with no employer size threshold.

USERRA prohibits employers from denying employment, promotion, or benefits based on military service or obligation to perform military duty. The law provides that employees who leave their jobs for military service have the right to return to employment in the same or a comparable position with the same seniority, status, and pay they would have received had they remained continuously employed.

Covered military service includes active duty, active duty for training, initial active duty training, inactive duty training, and duty performed by members of the National Guard or military reserves. Employees are entitled to unpaid military leave for the duration of their service, up to five years. Upon return, employees must be reinstated without loss of seniority, benefits, or other incidents of employment.

USERRA also prohibits discrimination and retaliation against employees for military service. The Department of Labor's Veterans' Employment and Training Service (VETS) enforces USERRA. Remedies include reinstatement, back pay, restitution of lost benefits, and attorney's fees for successful claims.

Wisconsin Statutes § 321.62 provides additional state-level protection for military service leave that complements USERRA. Wisconsin law requires employers to grant unpaid leave for employees ordered to active military duty with the Wisconsin National Guard or military reserves. The state statute applies to all Wisconsin employers, regardless of size.

Under Wisconsin law, employees must provide notice to their employer as soon as practicable upon receiving military orders. In cases where emergency military orders do not permit advance notice, employees must notify the employer within 10 days of receiving the orders. The employee's position must be held open, or the employer must assign the employee to a similar position with substantially equivalent pay, benefits, and terms and conditions of employment upon return from military duty.

Wisconsin Statutes § 321.64 explicitly prohibits employers from discriminating against or retaliating against any employee because of the employee's military service or obligation to perform military duty. This protection applies to hiring, retention, promotion, compensation, and all other terms and conditions of employment. An employer cannot discharge, threaten, or in any other manner discriminate or retaliate against an employee for performing military service.

Wisconsin's law does not provide paid military leave; leave is unpaid unless the employer voluntarily allows the employee to use accrued paid time off. However, employers must maintain an employee's health insurance and other benefits during military leave in compliance with USERRA. Wisconsin law is congruent with USERRA for military leave protections but provides explicit state enforcement mechanisms through the Wisconsin Department of Safety and Professional Services and civil remedies including damages and attorney's fees for violations.

No employer size threshold applies in Wisconsin or under federal law—all employers must comply with military leave protections.

Military leave duration: up to five years of cumulative service under USERRA.

Notice requirement: as soon as practicable, or within 10 days of receiving military orders in emergencies.

Job restoration deadline: employee must be reinstated to the same or equivalent position within a reasonable time after return from military service.

Statute of limitations: USERRA claims must be filed within three years of the alleged violation.

Military leave protections under USERRA and Wisconsin law have several important exceptions and limitations. First, the leave must be for service in the uniformed services, which includes the U.S. military, National Guard, military reserves, and certain federal service positions. Other types of leave—such as personal civic duty, jury duty, or non-military volunteer service—are not covered by USERRA, though they may be protected under separate Wisconsin statutes.

Employers are not required to pay employees while on military leave, and the leave is unpaid unless the employee uses accrued paid time off at the employer's discretion. However, employers must continue to provide health insurance coverage during the leave period, though the employee may be required to pay the employee's portion of premiums.

USERRA does not apply to employers with fewer than 26 employees nationwide in some limited circumstances involving extremely temporary positions or if the employer can demonstrate that reemployment would cause undue hardship. However, Wisconsin's state law applies to all employers without size limitation, so Wisconsin employees at smaller employers may have stronger protections under state law.

Employees who cannot perform the essential functions of their original position due to a service-connected disability may be placed in a different position, provided they are qualified or can become qualified with reasonable accommodation. Employees are not automatically entitled to promotion or advancement during military service.

Employers are not required to grant military leave for authorized absences beyond the five-year cumulative limit under USERRA. Additionally, discipline or discharge for legitimate non-service reasons—such as gross misconduct unrelated to military service—is not a violation of military leave law.

Step 1: Document Everything. Keep copies of all military orders, written notice you provided to your employer, email confirmations of leave requests, pay stubs showing your employment status before and after military service, and records of any adverse employment actions (discipline, termination, demotion, failure to reinstate). Maintain written records of dates you requested leave and the employer's response. Document any discriminatory statements made by supervisors or managers regarding your military service. Take screenshots of company communications and keep a personal log with dates, times, and details of conversations about your military leave.

Step 2: Internal Complaint Process. If possible, file a formal written complaint with your employer's human resources department explaining the violation—whether the employer refused to grant leave, failed to reinstate you in your original position, retaliated against you, or discriminated based on military service. Request a written response within 10 business days. State the specific law violated (cite Wisconsin Statutes § 321.62 or § 321.64, or USERRA). Keep copies of your complaint and all responses. Even if you believe the employer will not resolve the issue, documenting the internal complaint demonstrates good faith effort and creates a paper trail.

Step 3: File with the Government Agency. For federal USERRA violations, file a complaint with the U.S. Department of Labor's Veterans' Employment and Training Service (VETS) at vets.dol.gov or call 1-866-4-USWAGE (1-866-487-9243). You have three years from the date of the violation to file. For state law violations under Wisconsin Statutes § 321.62 or § 321.64, file a civil action in Wisconsin Circuit Court or contact the Wisconsin Department of Safety and Professional Services at 608-266-2112. Include your name, contact information, employer name and address, dates of military service, description of the alleged violation, and copies of military orders and documentation of the employer's response.

Step 4: Government Investigation and Process. VETS will review your complaint for jurisdiction and sufficient facts. If accepted, VETS will conduct an investigation by contacting your employer and requesting documentation of your employment records, military leave approval or denial, reinstatement status, and pay records. You will be asked to provide detailed information about the violation. The investigation typically takes 60–90 days. VETS may attempt informal resolution or issue findings. If the agency finds a violation, VETS may issue a determination letter ordering the employer to comply with USERRA and may award back pay and benefits. For state court actions, the process follows Wisconsin civil litigation rules, with discovery, possible settlement conferences, and potentially trial if the case is not resolved.

Step 5: Legal Representation. Consult an employment attorney licensed in Wisconsin if the employer refuses to comply with government findings, if the violation involved significant financial loss, if you were terminated for military service, or if the employer is retaliating against you after you filed a complaint. An employment law attorney can evaluate your case, represent you in settlement negotiations, and litigate in court if necessary. Many employment attorneys work on contingency in military leave cases, meaning you pay no upfront fees if you win. Contact the Wisconsin State Bar at 608-257-3838 or visit wisbar.org to find an employment law attorney.