It is unlawful and a misdemeanor to discriminate against any person because of his or membership or service in a state or federal military branch or because they are required to attend military duty, camp or training.1

The prohibition against discrimination applies to all terms, conditions or privileges of employment.

Private employers also cannot restrict or terminate any “collateral benefit” for employees by reason of an employee’s temporary incapacitation related to duty in the National Guard or Naval Militia. Temporary incapacitation means any period of incapacitation of 52 weeks or less. “Benefit” includes, but is not limited to, health care (which may be continued at the employee’s expense), life insurance, disability insurance and seniority status.

Employers who violate these state laws can be liable for actual damages and reasonable attorneys’ fees, as well as other remedies allowed by law.

Moreover, California provides leave protections and return rights, separate from those provided by federal law under USERRA.

Employees who are members of the reserve corps of the United States armed forces, the National Guard or the Naval Militia are entitled to up to 17 calendar days of unpaid leave per year (including time spent going to and returning from duty) for military training, drills, camp, naval cruises, special exercises or similar activities.2

If federal law provides more leave to the employee, you must follow federal law.

Members of the California National Guard ordered into active state service for emergency purposes or called to active duty are entitled to job protections and return rights.3 These protections extend to California employees who are members of the National Guard in another state and are called into service by the other state or by the president, causing them to leave a private job in California.

California also provides leave for qualified military spouses working for covered employers. For more information, see Military Spouse Leave.

Finally, the California Fair Employment and Housing Act (FEHA) protects applicants and employees from discrimination based on “veteran or military status.” For more information, see Veteran or Military Status.

1. Military and Vet. Code sec. 394