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In Legal Terms - Legislative Preview
Issue 2002
Responsibilities Regarding Employee
Military Leave
Unfortunately, it is very
likely that many county employees will be deployed to
active military service in the coming months. This, of
course, concerns us all on many levels and best wishes
are extended to all employees and their families who are
affected by these deployments. In addition to our personal
concerns for the well-being of our friends and co-workers,
this development also has important implications to the
county as an employer, and the ACCA office has begun receiving
questions about the logistics of county employees and
officials being required to take military leave for active
duty. None of us here are experts in this area, but it
seemed an appropriate time to provide some overview of
the law in this area.
Code of Alabama 1975,
§ 31-2-13 provides that all public officers and employees
shall be entitled to military leave of absence for required
military service "without loss of pay, time, efficiency
rating, annual vacation, or sick leave". The attorney
general has stated that under this provision, "a period
of military leave is counted as time served on the job
for any calculation, determination, promotion, or other
decision that is based upon length of employment." AG's
Opinion # 99-240. There are also federal protections under
the Uniform Services Employment and Reemployment Rights
Act of 1994 (USERRA) providing that military leave be
counted as time served on the job, and mandating that
a reservist be entitled to reemployment in his or her
civilian job upon conclusion of military duty. See, 38
U.S.C.A. § 4301-4333 and AG's Opinion # 99-240.
While Alabama's law does not
specifically address the accrual of retirement benefits
while on active duty, this is also covered under federal
law. Time spent on military leave counts toward retirement,
provided that the re-employed service person pays the
employee contributions for time spent on active duty.
See, 38 U.S.C.A. § 4318 and AG's Opinion # 99-240. In
a July 10, 2002 memorandum on this issue, the Employees'
Retirement System advised that under USERRA, an employer
re-employing a person returning from military leave shall
be liable to the retirement system for the employer's
obligation, and that the returning service member has
up to three times the length of military leave (up to
a maximum of 5 years) to make the contributions he or
she would have made during the time of leave.1
Under Code of Alabama 1975,
§ 32-2-13, a person on military leave shall not be paid
more than 168 hours per calendar year (21 days) while
on military leave. However, the Alabama Legislature enacted
a new law during the 2002 Regular Session which provides,
among other things, that a state employee called into
active service shall also receive from his employer an
amount equal to the difference between the lower active
duty military pay and the higher public salary which he
or she would have received if not called to active service.
See, Act No. 2002-430, codified at Code of Alabama
1975, § 41-12-1 et seq. These additional benefits
apply "for the duration of the active military service"
and are retroactive to September 11, 2001. The attorney
general has held that in calculating the amount to be
paid to the employee, the state employer shall use "basic
pay" from the military, which means that it is calculated
without consideration of the housing allowances, etc.
which the service person receives while on active duty
(and as such will require the employer to pay a sometimes
significantly higher amount). See, AG's Opinion # 2002-270.
This new law does not
directly apply to counties. However, § 31-12-6 provides
that the governing body of any local governmental entity
may provide its employees this additional
pay "for a period as determined by the local governing
body" under rules and regulations implemented by that
local governing body. It is important that counties interested
in providing these additional benefits study the new law
very carefully before making a final decision about implementing
its provisions. For one thing, it is unclear whether the
attorney general's office would extend its interpretation
of how pay should be calculated to local governments (although
I have been advised that at least one municipality has
voted to pay only the difference between the total
military pay and the employee's municipal salary"). Moreover,
there are other provisions in this new law that may be
applicable when, and if, a county "opts in". For example,
Code of Alabama 1975, § 31-12-7 provides that any
public employee who receives compensation from a public
employer under the act may elect to continue his or her
health insurance benefits. Additionally, the new law requires
that any public employee "covered under § 31-12-7" shall
be reimbursed for any annual or sick leave taken since
September 11, 2001. (Code of Alabama 1975, § 31-12-8).
As I mentioned above, in addition
to the pay and benefits, USERRA also protects the service
person's job while serving in active duty. A reservist
is entitled to reemployment in his or her civilian job
upon the conclusion of military duty, and is entitled
to the seniority and other rights and benefits determined
by seniority. See, 38 U.S.C.A. § 4312 et seq. and AG's
Opinion # 99-240.
There is another important
provision of Alabama law which warrants mention since
many county commissioners and other county officials are
also at risk of being deployed.2
Code of Alabama 1975, § 36-8-2, as amended by Act
No. 01-1095, protects a public official called to active
duty by providing that the public office shall not be
deemed vacated by active military service. Under Code
of Alabama 1975, § 36-8-3, the Governor may appoint
a "temporary acting official" to serve in the absence
of the elected official.3
However, unless the elected official's term has expired
during his or her absence, he or she shall be returned
to office upon proper notice of intent to return and resume
the duties of the office. Again, there are specific procedures
which must be followed under the law, and the official
(with the assistance of the county attorney) should carefully
review and follow this important law in order to protect
his or her tenure in office and to have input regarding
who will serve as his or her temporary replacement.
This will certainly be a trying
time for those employees and officials called into active
duty, and proper calculation and determination of status
and benefits related to their county employment will be
very important to them. Therefore, the county commission
and its administrative staff should carefully consider
and prepare for the military leave of its employees. As
I said at the outset, no one at the ACCA office is an
expert in this area, but we will certainly try to help
to find the answers. To that end, I have been advised
by an attorney at Alabama's Military Department that the
Reserve Officers Association has a very helpful web site
(www.roa.org)
with practical answers to many of the questions facing
employers and employees. Another source of information
is the Employer Support of Guard and Reserve (www.esrg.org).
I suspect that the Military Department can offer some
guidance as well.
1 Please
contact me at the ACCA office if you would like a copy
of this memorandum.
2 County Commissioner Robert Penn from the Pike
County Commission has been serving on active duty for
over a year. His wife currently holds that office.
3 And the official may "recommend" a name to serve
in that temporary position. See, Code of Alabama 1975,
§ 36-8-3(d).
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