Military Leave Pay For Public Employees
By Colleen M. Arnett and Henry A. Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
We thought you might be interested in a recent decision dealing with military leave pay, specifically when a public employer can pay less than the amount of pay specified by Ohio law (Revised Code 5923.05). On January 28, 2021, the Cuyahoga County Court of Appeals ruled that a Cleveland police officer was not entitled to the more generous military leave pay granted under the state law.
During his employment with the City of Cleveland, David Lam, a police officer for the City of Cleveland and a drilling reservist with the Ohio Army National Guard, received pay while on military leave in accordance with Cleveland Codified Ordinance 171.57 and the Cleveland Police Patrolmen’s Association Collective Bargaining Agreement. The Codified Ordinance states:
All officers and employees of the City who are regular active-duty members of any component of the Armed Forces of the United States, or reservists who are called to active duty to serve in the Ohio National Guard, * * * are entitled to a leave of absence from their respective duties for such time as they are in the military service or field training or active duty. If a City employee’s military pay or compensation during such period of leave of absence is less than his or her City pay would have been for such period, he or she shall be paid, by the City, the difference in money between the City pay and his or her military pay for such period.
With respect to military leave, the CBA states:
An employee who is temporarily called to active duty (e.g. summer training) shall be granted a leave for the duration of such active duty and shall be paid the difference between his [or her] regular pay and his [or her] total military pay (upon receipt of a service pay voucher) for a period not to exceed thirty-one (31) days in any calendar year, and further, shall accumulate vacation and sick leave with pay credit during the period of such leave. Employees on military leave who thereafter return to employment with the City shall receive retirement credit for all time spent in active military service.
Thus, according to the CBA and the Ordinance, Lam was entitled to the difference between his city earnings and his military pay for the entire time he was on military leave of absence from his city job.
However, Lam contended that the City was required under Ohio and federal law to provide him pay while on military leave in accordance with R.C. 5923.05, rather than in accordance with Cleveland Codified Ordinances and the Collective Bargaining Agreement. Ohio law, R.C. 5923.05, provides in part:
(A)(1) Permanent public employees who are members of the Ohio organized militia or members of other reserve components of the armed forces of the United States, including the Ohio national guard, are entitled to a leave of absence from their respective positions without loss of pay for the time they are performing service in the uniformed services, for periods of up to one month, for each federal fiscal year in which they are performing service in the uniformed services.
* * *
(B) Except as otherwise provided in division (D) of this section, any permanent public employee who is employed by a political subdivision, who is entitled to the leave provided under division (A) of this section, and who is called or ordered to the uniformed services for longer than a month, for each federal fiscal year in which the employee performed service in the uniformed services, because of an executive order issued by the president of the United States, because of an act of congress, or because of an order to perform duty issued by the governor pursuant to section 5919.29 of the Revised Code is entitled, during the period designated in the order or act, to a leave of absence and to be paid, during each monthly pay period of that leave of absence, the lesser of the following:
(1) The difference between the permanent public employee’s gross monthly wage or salary as a permanent public employee and the sum of the permanent public employee’s gross uniformed pay and allowances received that month;
(2) Five hundred dollars.
* * *
(D) No permanent public employee shall receive payments under division (B) or (C) of this section if the sum of the permanent public employee’s gross uniformed pay and allowances received in a pay period exceeds the employee’s gross wage or salary as a permanent public employee for that period or if the permanent public employee is receiving pay under division (A) of this section.
State law thus provides that an employee on military leave gets his/her full pay for one month.
Under federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) provides that those on military leave are:
entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice or plan in effect at the commencement of such service or established while such person performs such service.
Lam was paid only the difference between his city pay and his military pay. However, under Ohio and federal law, Lam calculated that he should be entitled to both his full pay from the military and full pay from the City of Cleveland for one month in each calendar year during which he is on military leave from his city job. Then, after a full month of pay from both, he should be entitled to the lesser of the difference between the city pay and his military pay and allowances, or $500. Note that the term “Month” for public safety employees means seventeen twenty-four hour days or four hundred eight hours, within one federal fiscal year.
In August 2018, Lam filed an action in the common pleas court citing violations of R.C. 5923.05. The court denied Lam’s claims and he appealed. The Court of Appeals ultimately affirmed the common pleas court’s decision.
The Court held that USERRA does not require employers to pay employees’ wages while they are on military leave. Rather, USERRA requires the city to provide employees on military leave the same benefits that it generally provides to other employees “having similar seniority, status, and pay who are on a furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect.” Full pay while an employee is on military leave is not a mandate, but rather, it is discretionary.
Furthermore, the Court found that R.C. 5923.05 does not prevail over either the CBA or a city ordinance. R.C. 5923.05(G) states that “Any permanent public employee of a political subdivision whose employment is governed by a collective bargaining agreement with provision for the performance of service in the uniformed services shall abide by the terms of that collective bargaining agreement with respect to the performance of that service, except that no collective bargaining agreement may afford fewer rights and benefits than are conferred under this section.” Emphasis added. Despite this language, the Ohio Supreme Court has previously ruled in State ex rel. Fraternal Order of Police, Ohio Labor Council, Inc., v. City of Sidney, 91 Ohio St.3d 399 (2001), that (1) collective bargaining agreements under Chapter 4117 could provide less benefits than those set forth in 5923.05 and that (2) cities using their “Home Rule” authority could likewise adopt a local ordinance that provided fewer benefits than the state law.
Following the Sidney decision, the Court of Appeals noted that the Ohio Constitution grants Cleveland the “authority to exercise all powers of local self government and to adopt and enforce within [its] limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” The Court felt that Cleveland Codified Ordinance 171.57 was a proper exercise of the city’s home-rule authority. As a result, the Court concluded that the City of Cleveland was vested with the right to pay its employees differential pay while on military leave, was not obligated to grant full pay, and so granted judgment in favor of the City.
This case highlights the importance of making sure your CBA contains clear language regarding military leave.