Delaware

ST08 Delaware (December 2007; Updated August 2010 - no changes to law)
1.18: USERRA and Other Laws
2.0: Paid Leave

Military Leave for School Employees in Delaware

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

For military leave by its state employees, Delaware law matches the five-year timeframe provided in the Uniformed Services Employment and Reemployment Act (USERRA). The state further provides for differential pay for its mobilized employees and also continues insurance benefits for the employee and his or her dependents for up to two years. Furthermore, pension benefits are made retroactive to 1945.

The law is written as follows:

"(a) In the case of any employee of this state who is called to the service of or voluntarily enters the armed forces of the United States or the National Guard of the state, when in continuous active service, the state agency, board, department, or other employing officer or agency of this state employing such employee shall grant to such employee a leave of absence which shall cover the entire period of such employee's service, not exceeding five years or until the term of service to which such employee has been called or volunteered has been terminated. Upon the completion of such leave of absence and service, such employee shall be reinstated in the position held at the time that such leave of absence was granted, and such employee shall be continued in employment under the same terms and conditions as if such employee had been in the continuous service of such employing agency during the period of the leave of absence.

"(b) Any employee of the state taking a leave of absence authorized by subsection (a) of this section who, as a member of the Delaware National Guard or a United States military Reserve organization, has been ordered to active duty to augment active forces for any operational mission, shall continue to receive that employee's own state compensation during the initial period of active duty prescribed by the military, to be reduced by any military compensation received. While on such leave of absence, for a period not to exceed two years, the employee and the employee's dependents shall continue to receive benefits provided under the state's group health insurance plan, provided that the employee continues to pay any employee-share premium for such plan. The Office of Management and Budget shall develop any rules and regulations necessary to implement the provisions of this subsection. These rules shall make it the responsibility of the employee to initiate the claim and supply the required military pay information. The state shall be responsible for collecting information relating to state compensation. Claims shall be filed within 90 days of release from active duty or passage of this legislation, whichever is later.

"(c) For the purpose of subsection (b) of this section state compensation shall be limited to base salary. Military compensation shall include base salary, basic allowance for quarters (BAQ), basic allowance for subsistence (BAS), hazardous duty pay and all other supplemental compensation.

"(d) In the event that any state employee who shall have entered the armed services under a leave authorized by subsection (a) of this section shall have been employed in any agency of the state government having a pension plan for employees or which shall come under any pension plan enacted or to be enacted by the General Assembly of the State, the time spent by such employee in the armed services shall accrue to such employee's benefit in establishing such employee's right to a pension. If during the time any such employee shall be in the armed services the total time spent actually as an employee plus the time spent in the armed services shall equal that period of time necessary to establish the right to retirement and to a pension, such employee shall upon application to the proper agency having jurisdiction be entitled to retirement and the pension prescribed by the rules of that agency in the same manner and with the same effect as if such employee had spent all of the required time in the actual employment of that agency.

"(e) This section shall be retroactive to protect the rights of any employee who shall have qualified as provided in this section prior to April 24, 1945, and such employee shall be entitled to all such pension money as shall have accrued since the time of having so qualified.

"Any person who may be appointed to replace any employee referred to in subsections (a)-(e) of this section shall be appointed only for the period covered by the leave of absence granted pursuant to subsection (a) of this section. (Delaware Code, section 5105.)

A separate law addresses military leave for principals, teachers, and other public school employees in Delaware:
"If a regularly appointed and employed principal, teacher, or other employee of a school district is called to the service of or voluntarily enters the armed forces of the United States of America or the National Guard of this state when in continuous active service, the school board shall grant to such principal, teacher, or other employee a leave of absence which shall cover the period of military service, not to exceed three years, or until the term of service to which he or she has been called is terminated, and upon the completion of the leave of absence reinstate such principal, teacher, or other employee in the position which he or she held at the time that the leave of absence was granted. The contract with such principal, teacher, or other employee shall continue in force under the same conditions as if the principal, teacher, or other employee had been in the continuous service of the board during the period of the leave of absence; provided, such regularly appointed and employed principal, teacher or other employee has received a certificate of satisfactory completion of military service.

"(b) Any principal, teacher or other school employee taking a leave of absence authorized by subsection (a) of this section who, as a member of the Delaware National Guard or a United States military Reserve organization, has been ordered to active duty to augment active forces for any operational mission, shall continue to receive the principal's, teacher's or other school employee's state compensation during the initial period of active duty prescribed by the military, to be reduced by any military compensation received. While on such leave of absence, for a period not to exceed two years, the employee and the employee's dependents shall continue to receive benefits provided under any applicable group health insurance plan offered by the school district, provided that the employee continues to pay any employee-share premium for such plan. The Office of Management and Budget shall develop any rules and regulations necessary to implement the provisions of this subsection. These rules shall make it the responsibility of the employee to initiate the claim and supply the required military pay information. The state shall be responsible for collecting information relating to state compensation. Claims shall be filed within 90 days of release from active duty or passage of this legislation, whichever is later.

"(c) For the purpose of subsection (b) of this section state compensation shall be limited to the state share of the base salary as calculated from the appropriate salary schedule, administrative supplements and all other stipends. Military compensation shall include base salary, basic allowance for quarters (BAQ), basic allowance for subsistence (BAS), hazardous duty pay and all other supplemental compensation multiplied by the ratio of state compensation to total compensation.

"(d) The person who may be appointed to replace the principal, teacher or other employee shall be appointed only for the period covered by the leave of absence." (Delaware Code, section 1327.)

Under USERRA, 38 U.S.C. 4301-4334, employees who leave civilian jobs for voluntary or involuntary service in the uniformed services have the right to reemployment in their pre-service civilian jobs, provided they meet the USERRA eligibility criteria. Under section 4312(c) of USERRA [38 U.S.C. 4312(c)], the period of uniformed service, relating to the employer relationship, can be up to five years, and in some cases longer. As I explain in detail in Law Review 201, all involuntary service and some voluntary service are exempted from the computation of USERRA's five-year limit.

Section 1327 of the Delaware law purports to limit the permissible duration of the employee's military service to three years for school employees-in that respect section 1327 is preempted by federal law and is void. Section 4302(b) of USERRA [38 U.S.C. 4302(b)] provides that USERRA supersedes a state law that purports to limit USERRA rights or that imposes an additional prerequisite on the exercise of USERRA rights. Article VI, Clause 2 of the U.S. Constitution (commonly referred to as the "Supremacy Clause") provides that federal law preempts conflicting state law. See Gibbons v. Ogden, 22 U.S. 1 (1824). Section 1327's three-year limit must fall under the Supremacy Clause.

USERRA does not require Delaware to pay differential pay to employees who are away from work for service. Accordingly, it is not unlawful for Delaware to limit the period of time for which it will pay differential pay or continue other employee benefits.

*Update: August 2010 - no changes to law. -SFW

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