Illinois Military Leave of Absence Act is Interpreted by a Court for the First Time

by Jordan E. Wilkow

A court has, for the first time, passed on employer liability under the Illinois Military Leave of Absence Act (“IMLOAA”), 5 ILCS 325/1.  See Bello v. Village of Skokie, No. 14 C 1718, 2015 WL 9582986, at *14 (N.D.Ill. Dec. 31, 2015).

On the face of it, the Act’s requirements are straightforward.  First, a public employee who is a reservist in the United States Armed Forces must be granted leave from his or her employment to perform required military service, including monthly training.  And second, the employer must pay to the reservist the difference between his or her compensation for the military activities and the compensation the reservist would have received if he or she had instead attended work.

Specifically, the Act provides that:

Any full-time employee of the State of Illinois, a unit of local government, a public institution of higher education, or a school district, other than an independent contractor, who is a member of any reserve component of the United States Armed Forces or of any reserve component of the Illinois State Militia, shall be granted leave from his or her public employment for any period actively spent in military service.

5 ILCS 325/1(a).

“Military service” includes basic training, special or advanced training, annual training, and “any other training or duty required by the United States Armed Forces.”  § 1(a)(1)–(4).  With respect to compensation, the Act provides that:

During leaves for basic training, for up to 60 days of special or advanced training, and for any other training or duty required by the United States Armed Forces, if the employee's daily rate of compensation for military activities is less than his or her daily rate of compensation as a public employee, he or she shall receive his or her regular compensation as a public employee minus the amount of his or her base pay for military activities.

Section 1(a).

Importantly, there is no dispute that an employer is not obliged to compensate its employee/reservist to the extent that the individual is called to military service on days when he or she would not otherwise be working.  An employee’s rate of compensation on an off day does not exceed his or her military compensation, because his or her compensation on an off day is zero.  Bello, 2015 WL 9582986, at *14; § 325/1(a).

Bello v. Village of Skokie, however, presented a fact pattern that the drafters of the Act did not expressly anticipate.  Mr. Bello, a police officer, did not have a conventional Monday through Friday work schedule with Saturdays and Sundays off.  Rather, each month Mr. Bello and his colleagues were to have nine “regular days off” (referred to as “RDOs” in the officers’ collective bargaining agreement), and each month the officers were to submit requests identifying their preferred days off for the coming month.  Mr. Bello argued that he was entitled to schedule his RDOs on days when he was not obliged to attend monthly military training, instead taking a leave of absence from a scheduled work day to attend the training.  The Village, on the other hand, believed that it was entitled to require that Mr. Bello take his RDOs on the days on which he was obliged to attend military training.  Mr. Bello argued that this violated the Act.

The IMLOAA is silent as to employment situations in which the reservist’s days off vary from month to month and can therefore be manipulated according to the reservist’s military service schedule.  Whether the gamesmanship that will inevitably occur under such circumstances should benefit the employee or the employer is thus not plain on the face of the statute.

Citing the principle that, when answering a novel question of state law, a federal court should err on the side of restricting liability rather than expanding it, the Court concluded that an employer does not violate the Act by requiring its employee/reservist to schedule his or her off days so as to minimize the employer’s exposure to § 1(a)’s compensation requirement.  Bello, 2015 WL 9582986, at *14.  The implication is that the employee/reservist will have to exhaust all of his or her off days before taking a military leave of absence on a work day (and possibly triggering the compensation requirement).  See id.

As the Court recognized, however, Bello presented a novel question regarding an Illinois statute that had not previously been interpreted by any court.  Id. at *13-14.  While Bello is certainly a key initial precedent, government employers should not regard the outcome as “bankable” until an Illinois appellate court has passed upon the issue.  One can imagine, for example, another court concluding that the IMLOAA was intended to benefit reservists in the armed forces, and that, as between the reservist and the state, if someone is to receive a windfall, it should be the reservist.