By Gary Bailey, Attorney - Friday, November 16, 2018
Elmwood Park Police Officers have a new three-year agreement.
Many improvements were made to this agreement, including defining the probation period, clarifying military leave benefits and streamlining the grievance procedure. Provisions identifying the process for lateral hires and establishing a new overtime hireback system were negotiated. A new non-pensionable benefit for retiring officers was obtained.
Wage increases of 2.25%, 2.0%, and 2.25% were bargained. Most importantly. the wages do not mirror those bargained by the fire union. The membership wanted to establish that their contract terms, including wages, were not uniformly tied to those of other village employees.
The Union Bargaining Team, comprised of Tom Brand, Joe Borini, Anthony Alequin, and Chris Pankey did a terrific job reaching this deal. Attorney Gary Bailey assisted the team in negotiations.
By Richard Stomper, Field Representative - Tuesday, November 6, 2018
The contract was resolved in interest arbitration. Only two issues were arbitrated, wages and whether the Village could utilize part-time officers. The bargaining unit took a very hard position against the use of part-time officers on the grounds that it would be decisive and possibly compromise public safety. Virtually the entire unit turned out to observe the interest arbitration. The union's position on wages and part-time officers prevailed. Wage increases will be 2.5% per year for each of the three years of the Agreement.
Court Resurrects the Issue of Withheld Longevity Pay
By James Daniels, Attorney - Monday, October 22, 2018
Four years of withheld longevity pay – an issue that has long been regarded as collateral damage in Governor Bruce Rauner’s open war with the dozens of unions which represent more than 30,000 State employees – is apparently on the table again, due to an Appellate Court ruling out of the Fifth District.
When Governor Rauner took office in January of 2015, he inherited dozens of open collective bargaining contracts. One of his first tactics at the bargaining table was to freeze all longevity steps that were set forth in the contracts of the tens of thousands of employees working in the forty-three agencies under the Governor’s office. The Governor then proposed that all longevity steps be permanently eliminated and replaced with merit-pay provisions allowing for only 25% of all state workers to get an annual merit raise, based upon the Employer’s assessment of their quality of work.
Although accepted by a small minority of unions (including the Teamsters), this proposal was otherwise overwhelmingly rejected by the remaining bargaining teams, which proceeded to fight the Rauner Administration tooth and nail over his repeated attempts to remove some benefits and gut others (such as changing the State’s health insurance plan from “gold” to “bronze,” which would require employees to pay 40% of all healthcare costs). Notably, the Illinois FOP Troopers union took CMS to interest arbitration, and achieved a significant victory by obtaining a ruling that the Governor’s plans to convert the gold plan to bronze was unreasonable – a ruling that was upheld by the Courts, and hamstrung CMS’ ability to reduce statewide health insurance benefits.
While the Troopers litigated health insurance, some other unions whose contracts contained both longevity pay steps and “evergreen” clauses (which required that all benefits continue uninterrupted after the contract’s expiration date) filed Unfair Labor Practices against the Rauner Administration, citing the withholding of longevity pay as a bad-faith attempt to illegally coerce unions by unilaterally changing the longstanding terms and conditions that they had previously worked under.
AFSCME’s Unfair Labor Practice (ULP), filed over the withholding of longevity pay for 24,000 of its members, was initially dismissed by an Administrative Law Judge (ALJ) at the Illinois Labor Relation Board. That recommendation was subsequently upheld by the Board’s full panel on May 26, 2016. AFSCME then appealed the matter to the Fifth District Appellate Court for review.
Eighteen months later, on November 6, 2017, the Appellate Court reversed the Board’s decision, finding that Central Management Services (CMS), the personnel agency under the Governor’s Office, had illegally altered the status quo ante by withholding employees’ longevity steps, and remanded the matter back to the Board.
Predictably, the Rauner Administration appealed the matter to the Illinois Supreme Court. However, on March 22, 2018, the high Court declined to review the appeal, thus letting the Appellate Court’s ruling stand.
Two months later, on May 8, 2018, the Board requested AFSCME and CMS to file briefs describing what remedy was appropriate to satisfy the Appellate Court’s Order. After repeated attempts by CMS to delay the matter by raising procedural objections, the Board, on July 10, 2018, officially vacated its May 26, 2016 Order, and ruled that CMS had indeed committed an Unfair Labor Practice by withholding the longevity steps of AFSCME employees, thereby ignoring its statutory obligation to bargain in good faith.
On August 29, 2018, a State Labor Board compliance officer issued a directive requiring a hearing to establish remedial measures, and stating that all effected AFSCME employees were to be placed on their appropriate longevity step, with backpay issued with 7% interest. The directive also required the State to provide information regarding its claim that it had “insufficient funds” to pay raises for the past four years.
CMS did not comply. Instead, on October 1, 2018, it issued an 18-page letter arguing that the Board’s order would require at a minimum six to eight weeks of concerted effort, and that diverting manpower to do so could have inadvertent consequences such as “putting Illinois’ elderly populations at risk.” The letter also argued that the owed backpay should be limited to any amounts due prior to January 2016, which was the month that CMS had officially declared impasse with AFSCME. In its letter, CMS continued to contend that the Illinois legislature had not allocated enough funds to pay all of the withheld step increases.
It is anticipated by all parties that another Board hearing will be set to hash out these issues, and it is not unlikely that the result of that hearing may be appealed to the Appellate Court (yet again) for review.
Despite the fact that litigation over the withheld pay seems far from over, three things are manifestly clear: first, that it is essential to include in every contract an unambiguous “evergreen clause” which guarantees that all benefits (financial and otherwise) continue uninterrupted throughout the negotiation process, even after the Contract expires.
Second, it is clear that all unions (to include the FOP Labor Council) that stuck to their guns and did not fold when faced with the Governor’s demand to trade longevity pay for merit raises have been vindicated. At the very least, they protected their members from having their annual pay arbitrarily determined by their supervisors’ subjective opinion about their work-product – a fate now imposed upon all Teamsters who work under the Governor. At best, non-AFSCME bargaining members who remained at the table through this entire grueling process have more leverage now than ever before to bargain for their members’ right to be put on the proper longevity step, and – perhaps – to recover lost backpay.
The third and most essential takeaway from this four-year debacle is that the rights of working people will only be secured when we elect into office candidates who prove their commitment to advancing the rights of public servants, and who are friendly to Labor in general and law enforcement in particular. Until Illinois voters demand a change at the highest levels of State government, we will most likely see this worst-case scenario play out again and again.
By Jerry Lieb, Field Supervisor - Monday, September 24, 2018
Unfortunately, many citizens have a bias against police officers. Whether it’s due to a bad experience with the police after being issued a citation, or the influence of negative and false narratives of police brutality, bias exists.
The purpose of this article is to provide a challenge to civilians like a challenge presented to Dr. George Kirkham, a criminology professor at the University of Florida, which led to him publishing his experience in a 1976 book titled “Signal Zero.” The following are excerpts from that book.
Professor Kirkham studied under his mentor Professor Thorton at USC where he received his PhD. His mentor had developed anti-police theories that he referred to as the “Police Personality”. Professor Kirkham began his first class by introducing himself and announcing to the class “I want to begin our discussion of the police and society by examining a most important topic, one that will occupy our attention in lectures and reading throughout much of the quarter. I am referring to the subject of “police personality.”
Professor Kirkham then presented his outline of the police personality:
Physically aggressive reactions to stress stimuli
He then asked the class if anyone had an opinion on this point. A student who appeared to be older than the average student in the class responded by stating that the police personality, to the extent that it exists, has to be explained in terms of the kinds of things a policeman’s work involved.
As Professor Kirkham examined the student responding to him he noticed a long 2” scar on his right cheek. Further along in the discussion, Kirkham discovered that the student debating the authenticity of his “police personality” list was a police officer on educational leave to complete his degree. The professor also discovered that the scar on the officer’s cheek came from a call he handled in his jurisdiction’s toughest beat.
During the term of the course, the Professor and police officer continued a friendly debate, many times over pizza and a beer. The police officer then challenged the professor stating that he had no business judging police officers from his “Ivory Tower” without really knowing what it was like to be a police officer on the beat. The professor responded with the statement that the police would never allow a true scientist inside to study them.
The police officer graduated and upon return to his department, he met with his chief and related his discussion with Professor Kirkham. The chief responded by advising the officer that if the professor put himself through the police academy he would assign him to a car in their worst beat. The officer extended the challenge which was accepted by the professor and after completing the police academy course, the professor joined the department and was assigned to a car in their worst neighborhood.
Dr. Kirkham brought to the job his learned theories that if you just talked to people you would settle issues without violence. The professor was fearful of carrying a gun and subscribed to his mentor’s theory if you did the job right you wouldn’t need one. His mentor was promoting the theory of an unarmed police like England thinking that would reduce violence in America.
What he discovered during his experience riding with a partner was that policemen were human, they talked about their families and kids and got scared like everyone else. He discovered that officers didn’t relish the violence or look forward to shooting people. He saw the emotional impact these situations had on the officers.
Dr. Kirkham said, “and almost always the calls would come without the precious luxury of time. Time. I had come to take it for granted in my life as a university professor. Time to think situations through, time to analyze them, dissect them. Time to weigh the desirability of different courses of action.”
Dr. Kirkham realized how unfair it was for people to judge officer’s actions who had seconds to make a decision when the individuals judging them had the benefit of reading all the reports in addition to weeks and months with a law library to research and second guess those decisions. Dr. Kirkham learned that in order to fairly judge the actions of police officers, one must consider the exact circumstances presented to the officer at the scene.
Dr. Kirkham transitioned his thinking as he went through real-life situations that cops face daily. He was dispatched to a suicide call and found the apartment door locked and thought they needed to get some authority to get the door opened. His partner kicked the door, making his split-second decision and found a man with his head in a gas oven unconscious. They saved his life. As the ambulance pulled away, the spectators began to drift off. Dr. Kirkham thought, “We just saved a man’s life. Wasn’t someone… anyone going to say something? It seemed as if someone should say something to us.”
From that suicide call they were dispatched to an accident scene. When he issued a citation to the man who caused the accident the motorist said to him, “If you guys would spend a little more time worrying about crime and a little less time making your ticket quotas, this city might be a decent place to live.” The motorist went on to say, “No wonder people don’t respect the police.” Dr. Kirkham said, “Yessir” and thought after hearing this, just who does this jerk think he’s talking to? Then I thought, to a man in a police uniform, that’s who, as I answered my own question. I wasn’t used to being talked down to like a lacky. I didn’t like it.”
Interestingly, after completing the suicide call, and feeling pretty good about himself, the sergeant came up to Dr. Kirkham and his partner and chewed them out for being out of the car without their hats on, in violation of policy. When the sergeant left, Dr. Kirkham let loose with a commentary about the sergeant. The partner told Kirkham he found it interesting that he had less than two weeks on the job and was starting to sound like a real cop!
One of the theories Dr. Kirkham brought to the police job, as mentioned earlier, was that there was no reason for violence if you just talked to the suspects and gave them a chance to explain. Dr. Kirkham’s partner decided he was comfortable with him and allowed him to drive the squad car. Dr. Kirkham was feeling very proud when the radio blared “Signal Zero”, an officer needs assistance.
Kirkham’s partner screamed at the radio, “where damnit?” and yelled at Kirkham to floor the car and get going, constantly yelling “faster” at Kirkham. They were the first to arrive at the scene and observed two guys smashing a motorcycle officer’s head into their car. The partner jumped out and tackled one of the guys while Kirkham grabbed the metal flashlight and went after the guy who was still bashing the officer’s head into the car. Dr. Kirkham swung the flashlight to strike the big suspect on the arm when the motorcycle officer managed to push the suspect up. Dr. Kirkham’s flashlight blow came down on the top of the suspect’s head, destroying the flashlight and dropping the suspect.
As the squad cars began arriving at the scene, Dr. Kirkham looked around at the crowd watching the officer get assaulted. Most were white, male and young. Not one of them tried to help the officer. Kirkham heard himself say, “What the hell is wrong with you people?”, as they began to walk away. “Us. That was the way it was most of the time”, he would soon learn. “I would come to realize that we really had only one another to depend on, only one another to call on in time of trouble.”
After they arrested the two suspects, his partner stated, “Jesus, Doc, I’m afraid this is serious, that light you just busted is city property the sergeant will want a form 10 explaining what happened to it. You might wind up having to pay for it!” Kirkham’s partner then told him he would have to meet with Internal Affairs over the use of force but not to worry that he and the other officer saw the whole thing and would support him.
When Dr. Kirkham published his book about the months he spent as a policeman, he wrote the following note to the reader:
“This book is the story of a university professor who left his campus for several months to work as a street patrolman in a large American city. It is my story. I do not pretend that what follows is an objective book about either the police or crime in our society. This could never have been such a work, although in the beginning, I had thought that it might be. But what happened to me in those months made it impossible for me ever again to view a policeman’s world from the detached perspective of a social scientist. I realize that now.
What follows is an account of the things I saw, felt and did during the time worked behind a badge and uniform. It is neither a polemic written on behalf of the police nor a diatribe against them. It is simply the story of a group of remarkably ordinary men whose unfortunate distinction is that they must regularly function in the face of extraordinary human stress, and sometimes in the face of indescribable human tragedy.
The identity of the actual police department and city in which this drama unfolded is not important. The fact that it happened is. I have changed the sequence and some details of certain events, and have altered the names, descriptions and physical characteristics of all persons and places involved in them, in order to protect the privacy of those who made this book possible. Beyond that, I have tried in writing it to honor a promise I once made,
tell it like it is.”
This article does not encompass all the experiences Dr. Kirkham faced but the value of his experience should not be lost. What most people don’t understand is that we are victims of our own bias. As anthropologist Ruth Benedict pointed out in her book, “Patterns of Culture”, when you judge societies other than your own, you judge them based on your cultural bias.
This concept is supported by Dr. Kirkham’s experience. His views were very biased by the concepts he was taught by his professor at USC and he believed in them to the point he was utilizing those concepts and passing that bias on to his students. When he accepted his student police officer’s challenge to ride with police officers as an officer he learned the fallacy of the theories he was taught and changed his thoughts in regard to police officers.
This article is not intended to portray officers as never making mistakes, but the general citizen concept of police officers comes from television cops that can chase a suspect for a mile, pull out a snub nose revolver and wing him in the leg at a 100 yards. There are citizens that believe police officers should shoot to wound offenders with no clue of the training or the emotions and stress and how this impacts officers in shootouts.
So, the challenge is if you truly want to fairly judge police officer’s actions, take a page from Dr. Kirkham’s book and spend some time with a police officer in the roughest district and experience the fear and danger our police officers face on a daily basis. Understand how this fear and stress is passed on to their families, knowing that every day when their police officer husband or wife leaves the house for work it may be the last time they ever see him/her again.
Franklin Park Police Officers, Police Sergeants and Police Commanders have a new four-year agreement.
Wage increases of 2.0%, 2.25%, 2.25% and 2.5% were negotiated. The officers bargained improvements to retiree health insurance, educational reimbursement, promotions and specialty pay. The officers also bargained an extra holiday.
Of major importance, the members bargained an extended pay scale so that officers retiring after 25 and 30 years of service will receive increased salaries for purposes of retirement pensions.
The Union Bargaining Team, comprised of Russ Klug, Tom Ferris, Steve Ross and Vito Busse fought hard to achieve these significant improvements. Attorney Gary Bailey assisted the team in negotiations.
A Message from National FOP - Labor Service Division
By IL FOP Labor Council, Staff - Wednesday, July 11, 2018
The long awaited Supreme Court decision is here and it is what we expected. The Supreme Court ruled that Fair Share Fees are unconstitutional under the First Amendment of the Constitution. However, there is some interesting language in the heart of the decision concerning the Duty of Fair Representation, but more about that later. Here are some general observations about the decision:
This decision effects only the issue of Fair Share and the collection of dues under the Fair Share doctrine.
If you have a fair share clause in your Collective Bargaining Agreement (CBA), this decision invalidates that clause.
Since most CBAs have a severability clause ensuring the continuation of the CBA in the event some part is ruled invalid or unenforceable, the invalidation of a fair share clause should have no effect on your CBA.
If you do not have a severability clause in your CBA, you may have to go back to the bargaining table to discuss this issue.
Your employers are required to stop taking Fair Share Fees from non-members as of June 27, 2018. Any fees collected after that date and sent to the lodge are required to be returned to the non-member.
If you have language on the form you use for payroll deduction referencing Fair Share Fees, those forms should be replaced with forms indicating the payroll deduction for union dues is voluntary.
The Janus decision did not stop a public employer from participating in payroll deductions for union dues from members.
In the Janus decision there is a section discussing the Duty of Fair Representation. The Court during this discussion opened the door to the prospect of charging non-members a fee for services or denying service altogether, as long as it is reasonable. However, it qualified that statement by saying union decisions cannot be arbitrary or in bad faith. In the coming months we will be examining ways to handle the question of Duty of Fair Representation. I believe a threshold might be the representation of a non-member during the initial processing of a grievance but once the grievance requires the use of attorneys and experts then the issue of payment or non-performance comes into play.
Frequently Asked Questions
What does the Janus decision do? It effects the ability of a lodge to collect monies from non-members as a condition of employment.
Does the Janus decision effect the ability to have dues deductions from members? No, where state and local laws allow, the deduction of dues from member’s paychecks is left unchanged. In other words, if your local jurisdiction is now deducting dues from your paycheck that will not change.
Will the Janus decision cancel out the right of members to have their dues deducted from their paycheck? No, although it may require you to fill out a new dues deduction form, if your old one mentioned fair share from non-members.
Can non-members still pay a fair share fee and have it deducted from their pay check? Yes, but the authorization form will have to clearly state the non-member is doing it voluntarily and is not required to do so based upon the Janus decision.
Will our union have to renegotiate any of the clauses in our Collective Bargaining Agreement? Yes, if you have clauses in your CBA that refer to fair share payments by non-members.
Does my lodge have to represent non-members under the Duty of Fair Representation? Yes, to a certain extent. We are still evaluating the language in the Janus decision to see how it might affect the Duty of Fair Representation. At the very least you will be required to represent non-members during the initial processing of a grievance. However, at such time attorneys or expert witnesses may be needed it may be possible to charge the non-member for those services. Please keep in mind each state may have different rules as far as the duty of fair representation and you should consult your own state law.
Does the lodge have the responsibility to bargain collectively for non-members? Yes, all bargaining unit members, even non-dues paying bargaining unit members, must be represented fairly in contract negotiations.
As expected, the U.S. Supreme Court sided with anti-union activists and overturned 40 years of precedent to hold that public sector bargaining unit members who do not want to belong to a union can choose to pay nothing for the costs of bargaining a collective bargaining agreement but must still be provided all the benefits of that collective bargaining agreement. Janus v. American Federation of State, County, and Municipal Employees, No. 16-1466. This case was originally started by Illinois Governor Bruce Rauner in his unrelenting effort to break public sector unions (including law enforcement unions). Rauner was early on dismissed out of the suit because he lacked standing and was replaced by anti-union activist Mark Janus. Public Sector employees were never required to belong to a union if they chose not to. Before Janus, however, bargaining unit employees who chose not to belong to the union were required to pay a portion of the union dues, their “fair share,” for the costs of bargaining and administering the collective bargaining agreement. The Janus Court found that requiring non-members to pay any money for the costs of collective bargaining violated their First Amendment right under the U.S. Constitution. Now, under the Janus decision, non-union members pay nothing and their fellow employees, who are union members, will shoulder all the expense of bargaining those benefits. Governor Rauner aimed to undercut the unions’ ability to fund collective bargaining, thus giving him free rein to massively cut employee benefits. This will not happen if employees stay together and continue to support the idea of collective bargaining and maintain their union membership. If union membership is maintained, the Janus case will have very little impact.
In overturning Abood v. Detroit Board of Education (which previously required employees to pay their fair share for the costs of collective bargaining), the Janus Court indicated that unions going forward could charge non-bargaining unit employees the costs of processing, for example, discipline cases. This would include the costs of legal representation during department interrogations, challenging discipline through the grievance arbitration procedure, and the costs of a court reporter and a portion of the arbitrator’s fee. Such cases typically cost thousands of dollars. For union members, these fees are covered by the member’s monthly union dues. While employees who choose not to belong to a union will be entitled to the negotiated benefits available to union members, such as wages and insurance, they can be expected to be charged for certain costs should they decide, for instance, that they need representation in a disciplinary matter or otherwise wish to challenge discipline.
Law enforcement employees understand the importance of belonging to and supporting their union. The unions protect their backs in a generally hostile world of employment relations. For bargaining units that simply maintain their union membership, the Janus case will have very little impact and the unions will continue to fight for their rights and to secure better wages and working conditions.
By IL FOP Labor Council, Staff - Wednesday, June 27, 2018
The 12,000 Illinois Fraternal Order of Police Labor Council members recognize the strong and diverse services we provide and have faith that we always have their backs.
We are even more committed to that level of service in the wake of the Supreme Court's Janus decision. We will continue to be there when you need us the most, for critical incident responses, training, fighting bad legislation, when your contracts and benefits are on the line, and numerous other supports that are available 24 hours a day, seven days a week. We will not slow down, hesitate or falter.
The Supreme Court case was never about Mark Janus. It was simply a planned effort by many ultra-conservative factions to weaken organized labor.
We look forward to remaining your fiercest advocate as union members. Together we are strong. Together we are successful. And together we will continue to proudly represent the noblest and most dedicated profession in the State of Illinois.
By Kevin Krug, Field Supervisor - Tuesday, June 17, 2018
The parties completed negotiations for a sucessor Labor Ageement prior to the existing Labor Agreement expired. The team was successful in increasing compensatory time. Expanded who can provide a medical certification when requested to include nurse practitioner and nurses assistant. Expanded the use of sick time per the The Illinois Employee Sick Leave Act (Public Act 99-0841). Improved text for selection of an arbitrator. Want to thank the team that worked hard in presenting reasonable proposals to the Employer and having explanations why the Employer should accept the changes.
By Jay Titus, Field Representative - Friday, June 1, 2018
The City of Fulton Police Department has a new three-year Agreement. The team secured a wage increase in each of the three years, increased the maximum accrual of compensatory time, added a step to their wage step scale and was able to obtain a 12-hour work schedule. Many beneficial language changes were made throughout the contract which have a positive impact on all the members. The bargaining team of Jeremy Leitzen, Casey Simpson and Dwayne Hamilton did an excellent job representing the members. The team was assisted by Field Representative Jay Titus.
By Doug Crawford, Field Representative - Friday, June 1, 2018
Greene County FOP #113, composed of Deputies, Corrections and Telecommunicators, reached a three-year deal with the County and Sheriff. Wages increased 2% each year; insurance remains at 100% paid for the employee. Classification seniority, family sick leave use, and part-time deputy work sharing were defined. Jason Havlin represented the unit along with Field Representative Doug Crawford.
By Jay Titus, Field Representative - Friday, June 1, 2018
The Savanna Police Department completed a new three-year Agreement. The team secured a wage increase in each of the three years, significantly increased Lieutenant pay, limited part-time officer use, streamlined the grievance procedure, increased personal and compensatory time, increased uniform allowance and the percentage between the last three longevity steps were increased. Beneficial language changes were made throughout the contract which have a positive impact on all the members. The bargaining team of Dan Neville and Mitch Ottenhausen did an excellent job representing the membership. The team was assisted by Field Representative Jay Titus.
By Bruce Wisniewski, Field Representative - Thursday, May 31, 2018
After a protracted period of bargaining with the County of LaSalle, an amicable and mutually beneficial contract was reached. Wages (with retroactivity) will increase 12.75% over the term of the Agreement. Also the salary schedule was reduced from 18 steps to 16 with no reduction of salary and a $2,500 wage adjustment will be implemented for those with 10 or more years of service. Remaining contract improvements include, establishing new overtime language that segregates Bond Ct from all other OT; ensuring that 5 vacation days can be carried over to next year; creating an annual insurance opt out of $2,000; and incorporated OIS language and SAMHSA standards for drug testing. Congrats to bargaining team members Donna Ortiz and Tom Kramirsic for their persistence and perseverance in ensuring that workplace conditions were improved.
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).
The West Frankfort Patrol Officers finished their wage reopener with a wage increase, along with a reduction in the length of time a newly-hired officer receives full pay. The negotiations were held in West Frankfort and Rich Bernardini and Ron Howard did an excellent job for their members. The unit was assisted by Attorney Amy Rose.