Local Representation
What is a ‘day’ under
the military leave statutes?
We have received many inquiries from our clients
regarding the payment of military leave benefits
to those officers in the reserves or organized mili-
tia who have been activated. Some departments
incorrectly contend that leave time is based on an
eight-hour workday, regardless of the officer’s regu-
lar workday hours.
Two statutes govern the use and payment of mil-
JAMES M. itary leave in New Jersey. N.J.S.A. 38:23-1 provides
METS, ESQ. that a permanent or full-time temporary employ-
ee of a municipality who is a member of the Army,
Navy, Air Force or Marine Corps Reserve is entitled to a “leave of
absence from his or her respective duty without loss of pay or time
on all work days on which he or she shall be engaged in any pe-
riod of federal active duty, provided, however, that such leaves of
absence shall not exceed 30 working days in any calendar year.”
The second, N.J.S.A. 38A:4-4, provides that a permanent or full-
time temporary employee of a municipality who is a member of
the organized militia is entitled to a “leave of absence from his or
her respective duties 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; provided, however, that the leaves of absence for fed-
eral active duty or active duty for training shall not exceed 90 work
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days in the aggregate in any calendar year.”
Some employers have taken the position that these statutes en-
title officers in the reserve component of the U.S. military or orga-
nized militia of the State of New Jersey to be paid for an eight-hour
day for training, despite the fact that officers work more hours per
day. Accordingly, they have deducted any time off beyond eight
hours from an officer’s accrued leave bank or have required the
officers to take the additional time off without pay. This position
is contrary to state law, which allows for military leave of absence
without “loss of pay or time.”
Nowhere in the statutes are limitations on the number of hours
of leave when calculating the 30 or 90 working days. Rather, the
statutes are crystal clear. By using the term “working days,” the
legislature could only have intended to mean the working day of
the employee at issue. Otherwise, the legislature would have used
the more generic term “day.” Thus, the question of how many
hours are in a workday is irrelevant. An employee must be paid in
full for the work days he or she misses as a result of active duty for
either 30 or 90 working days in a calendar year.
A New Jersey State Department of Community Affairs, Division
of Local Government Services “Local Finance Notice” (LFN 2004-
14 [July 15, 2004]), directly supports this position: