ST15-1 Illinois Differential (September 2008; Updated August 10 - no changes to law)
1.18-USERRA and Other Laws
2.0-Paid Military Leave

Illinois Local Government Employees Get Differential Pay When Mobilized

By CAPT Samuel F. Wright, JAGC, USN (Ret.)

An Illinois law provides for differential pay for local government employees who are mobilized as members of the National Guard or Reserve. Does the state law violate the Uniformed Services Employment and Reemployment Rights Act (USERRA)? The Illinois law states:

“Any employee of a unit of local government who is a member of any reserve component of the United States Armed Forces, including the Illinois National Guard, and who is mobilized to active military duty on or after August 1, 1990 as a result of an order of the President of the United States, shall for each pay period beginning on or after August 1, 1990, continue to receive the same regular compensation that he receives or was receiving as an employee of the unit of local government by which he is employed at the time he is or was so mobilized to active military 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.

“In the event any provision of a collective bargaining agreement or any policy of the employing unit of local government covering an employee so ordered to active duty is more generous than the provisions contained in this Section, that collective bargaining agreement or unit of local government policy shall be controlling.

“In the event that 20 percent or more of the employees of a unit of local government are mobilized to active military duty on or after August 1, 1990, as a result of an order of the President of the United States, the provisions of this Act shall not apply to individuals employed by such units of local government.” 50 Illinois Compiled Statutes, Chapter 50, section 140/2.

This right to differential pay, under state law, appears to be limited to Reserve Component members who are involuntarily called to active duty. USERRA applies to voluntary and involuntary service in the uniformed services. Does this state law violate USERRA? No, because USERRA does not require the civilian employer to pay differential pay at all. Insofar as the State of Illinois is conferring a benefit on local government employees that is over and above USERRA, the state may use such criteria as it chooses in that generosity.

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