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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

January 2014, vol. 15, no. 2

Military leave for governmental employees

“Soldiers -- You are about to return to your homes and your friends, after having, as I learn, performed in camp a comparatively short term of duty in this great contest. I am greatly obliged to you, and to all who have come forward at the call of their country.”

—President Abraham Lincoln,
Washington, D.C., August 18, 1864:
Speech to the One Hundred Sixty-Fourth
Regiment

 

Attorneys working with personnel offices for public-sector employees may be called upon to address questions regarding military leave for those in their work force who also serve in the military reserve or the National Guard. Over the past decade, public employers have become increasingly familiar with the provisions regarding federal and state re-employment rights for veterans after a lengthy mobilization and deployment. While the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 USC §§ 4301-4335, does indeed provide overall protection, this article, however, addresses only those types of absences incurred by a “governmental employee” of this State.

Illinois’ public workers have arguably more specific protections for leave requests that may or may not necessarily involve more than a month-long absence. For example, a member of the military reserve or the National Guard is generally scheduled to train one weekend per month and to perform between 14 and 29 annual-training days, during the course of the fiscal year. However, the weekend training can stretch into the civilian work-week, if Friday travel or duty obligations are scheduled for the reservist or guardsperson for an extended weekend assembly period. These extended training or annual training periods then often coincide with the civilian work-week, thus requiring leave for the citizen-soldiers who are also government employees.

In Illinois, the Military Leave of Absence Act, 5 ILCS 325, provides a base point for beginning the discussion with the public employer about additional, enhanced protections for governmental employees. The Act, via Public Act 82-679, became effective on November 12, 1981, and consists primarily of one major provision. Section 1 of the Act, 5 ILCS 325/1, provides:

Any full-time employee of the State of Illinois, a unit of local government, or a school district, other than an independent contractor, who is a member of any reserve component of the United States Armed Forces or of any reserve component of the Illinois State Militia, shall be granted leave from his or her public employment for any period actively spent in military service, including:

(1) basic training;

(2) special or advanced training, whether or not within the State, and whether or not voluntary;

(3) annual training; and

(4) any other training or duty required by the United States Armed Forces.

Thus, the Act provides special employment protection specifically for those public-sector employees during any type of voluntary or involuntary military training or duty no matter where the training is located. Although the first three items of the Act’s subparts apply particularly to different types of military “training,” the fourth item in the list includes an important, omnibus catch-all that also includes “any other training or duty.”

Two of the condition precedents for the Act’s protections are generally that the employment must be full-time and that the work cannot be contractual. Additionally, the State law extends this leave protection to not only State employees, but also to employees of units of local government and school districts. This extended outreach of the law, applying to school districts, provides a notable expression of the law’s intent to expand governmental coverage to include these referenced districts. Otherwise, Section I of Article VII of the Illinois Constitution, Ill. Const. 1970, art. VII, § 1, and through cross-reference Section 1.28 of the Statute on Statutes, 5 ILCS 70/1.28, both specifically would except school districts from the definitions of “units of local government.” Further, Section 1.1 of the Military Leave of Absence Act, 5 ILCS 325/1.1, explicitly preempts home rule authority by stating affirmatively “that a home rule unit may not regulate its employees in a manner that is inconsistent” with this law.

Much like USERRA, this Illinois law further states that during these military leaves of absence, the applicable seniority and other employment-related benefits of the public-sector employee continue to accumulate. In addition, the law includes important requirements for the governmental employees’ pay differentials during these periods of training, as well as for the term of mobilization for active-duty. These types of governmental pay protections under the Illinois law are another example of this provision providing additional protections for the citizen-soldier who is a public employee.

Conformingly, Illinois Attorney General Opinion No. 91-018, issued April 25, 1991, provides that the law applies irrespective of whether the Illinois public employee’s military unit is located in Illinois or within another State. In the opinion signed by then Attorney General Roland W. Burris, the Attorney General’s Office determined generally that as long as the government employee’s civilian job was in Illinois, then the provision still applied when the citizen-soldier traveled across the border periodically for military duty with a National Guard unit in Iowa. As a result, Illinois reservists and guardspersons are endowed with double protection of their military leave through the USERRA and Illinois’ Military Leave of Absence Act.

As an enforcement option, the Act provides that contravention of the statute is deemed a civil-rights violation under the Illinois Human Rights Act, 775 ILCS 5. Administrative rules, agency policies or governmental ordinances, among others, may also address military leave for employees. For example, the administrative rules for applicable executive-branch agencies entrench in relevant part of Section 302.220 of the Merit and Fitness provisions, 80 Ill. Adm. Code § 302.220, the military leave and seniority protections generally mirroring the protections of USERRA and the Act.

The cited federal and state provisions mentioned in this short overview are merely a starting point from which to begin your legal research. Please consult the subject law and rules directly for further details on the applicable requirements and obligations generally affecting eligible governmental employers, as well as public employees who are in military service with a reserve or guard component. ■


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