Improving the Lives of Those Who Serve
By Sander Weiner, Attorney - Thursday, May 17, 2018
Police Officers who also serve with any Armed Forces Reserve components, including the National Guard, may want to keep a watchful eye on SB 3547. The Illinois FOP Labor Council along with its lobbyists from Leinenweber, Baroni, and Daffada and several other interested parties have been assisting the Attorney General's office with the proposed legislation to ensure that citizen soldiers in Illinois are getting a fair shake. There are currently several Illinois State laws meant to protect the rights of service members and their families, particularly those employed in the public sector. If the bill becomes law, several of these statutes will be repealed. The intent of those currently on the chopping block were well intended when enacted. However, due to ambiguous language and less than ideal drafting, the current laws, as written, have led to unnecessary litigation and unjust outcomes. Naturally, when it comes to overhauling such a crucial body of legislation the tendency to be overcautious is warranted. But, sometimes it is necessary to lose something good in order to gain something great. This senate bill has been long overdue considering the state of current legislation and present-day "total force" policies.
The Labor Council has been focused on ensuring that the essential benefits from Illinois statutes in line to be repealed will not be diminished. The current bill is intended to clarify, consolidate, and when appropriate, develop current service member benefits as well as incorporate and supplement the federal law. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is the principal federal law, ensuring that persons serving in the Armed Forces, Reserves, National Guard or other "uniformed services" are not disadvantaged in their civilian careers because of their service. 38 U.S.C. § 4301-4335.
Service member employment rights and benefits provided by USERRA are plentiful and include: entitlement to return to the employer, with accrued seniority, after returning from military service; entitlement to the most favorable seniority rights provided to other employees on non-military leave of absence; additional paid time options; health insurance coverage up to 30 days; continued service credit for pension plans and; other job protections. However, USERRA acts as the floor, not the ceiling. For citizen soldiers to have the ability to carry on with their duties, State and local law must supplement the minimum requirements set forth in USERRA. The proposed legislation focuses less on what USERRA provides and concentrates on areas where protections are lacking.
In a perfect world, we would not need to meticulously scrutinize statutory language that is solely intended to protect service members. While most employers proudly support their service member employees, there are still those few unscrupulous public employers in Illinois who insist on holding onto nickels as though they were manhole covers. In their effort to save a few dollars, they take no issue in harming those who have answered the call and put aside civilian pursuits to serve our country and state in times of need.
Earlier this May, a federal judge granted a motion to dismiss an Illinois National Guardsman's case after he was forced to resign from the National Guard Counter Drug Task Force in order to pay his bills. The Joliet Police Sergeant was activated for Full Time National Guard Duty under Title 32 to serve on the task force. Though it is the soldier, not the lawyer, who gives us the right to a fair trial, and the guardsman's orders clearly stated the authority for his leave, he was not afforded federal protection under USERRA. His service was purportedly solely under the authority of State and not Federal law. Since any state claims would have been brought into federal court under supplemental jurisdiction, the judge ruled that, without a federal issue, he did not have subject matter jurisdiction to hear state claims and dismissed them without prejudice. To summarize, the Judge bought the employer's argument that he was not entitled to differential pay or any other benefits that ought to have accrued while on leave for active duty. We at the Labor Council do not buy this argument. Unfortunately, this is not an isolated incident of a public employer finding a kink in the citizen soldier's statutory armor. With the new legislation, we hope to make it more difficult for them to do so.
To tackle some of the major issues that have arisen over the years, the senate bill will repeal the Military Leave of Absence Act which states that "during leaves for annual training, the employee shall continue to receive his or her regular compensation as a public employee." Instead, it will be explicitly stated that public employees will receive concurrent pay for annual training up to 30 days. There have been attempts by public employers to limit concurrent pay to 15 days, as the Military Leave of Absence Act does not define "annual training." SB 3547, as written, ensures that service members will be provided their full pay, plus military pay (concurrent) for up to 30 days.
Additionally, the Local Government Employees Benefits Continuation Act would be repealed. The language in section II of this Act was unclear, especially regarding Guard Members called into service by the Governor. Instead, the language is simplified by stating that "during periods of military leave for active service, public employees shall receive differential compensation" with a few limited carveouts. Perhaps more importantly, a fair amount of thought and language went into clarifying the muddied issue of continued health insurance benefits while on active duty. If the bill becomes law, service members will no longer have to worry about their spouses and children being forced into TRICARE or increases in their insurance premiums while serving.
An additional highlight to the bill is that it would provide additional enforcement rights and remedies that are currently not available. A private right to sue and authority for the Attorney General to enforce the Act is supplementary to the current cause of action for human rights discrimination, which has routinely caused confusion and hindered any semblance of a speedy resolution. It can be difficult for service members to prove a human rights violation due to their status as such, which is why it is paramount that additional enforcement rights are available. Moving forward, we will continue to strive to find ways to increase protections and benefits for all service members and Union members alike.
While we would like to believe SB 3547 is a perfectly written piece of legislation, a tree does not always fall with one blow. As always, unforeseen issues will arise. The legislative intent is imprinted into the senate bill and statutes can always be amended. Should any of our members take issue with some of the language in the bill, or just need clarification on an issue or specific language, do not hesitate to contact one of our attorneys at the Labor Council.
1-Charles Michael Province, U.S. Army, Copyright Charles M. Province, 1970, 2005.
2-"Annual training" means any active duty performed under Section 10147 or 12301(b) of Title 10 of the United States Code or under Section 502(a) of Title 32 of the United States Code.
3-Sec. 2. Any employee of a unit of local government who is a member of any reserve component of the United States Armed Services, including the Illinois National Guard, who is mobilized to active military duty on or After August 1, 1990 as a result of an order of the President, shall for each pay period beginning on or after 1990, continue to receive the same regular compensation that he receives or was receiving as an employee of the local government by which he is employed at the time he is or was mobilized to active duty, plus any health insurance and other benefits he is or was receiving or accruing at that time, minus the amount of his base pay for military service for the duration of his active military service. 50 ILCS 140 (Emphasis added).