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Friday, July 23, 2010

New Alabama Military Leave Law












Alabama@Work
By: Tommy Eden, Attorney

Effective July 1, 2010, an Alabama law passed in the last legislative session grants new rights to public employees for up to 168 hours of paid military leave from their public entity jobs and requires private employers to grant certain leave rights. Alabama Act No. 2010-535 (amends Code of Alabama, § 31-2-13) reads as follows:

"All officers and employees of the State of Alabama, or of any county, municipality, or other agency or political subdivision thereof, or officers or employees of any public or private business or industry who are active members of the Alabama National Guard, Naval Militia, the Alabama State Guard organized in lieu of the National Guard, or of any other reserve component of the armed forces of the United States, shall be entitled to military leave of absence from their respective civil duties and occupations on all days that they are engaged in field or coast defense or other training or on other service ordered under the National Defense Act, or of the federal laws governing the United States reserves, without loss of pay, time, efficiency rating, annual vacation, or sick leave. Notwithstanding the foregoing, no person granted a leave of absence with pay shall be paid for more than 168 working hours per calendar year, and those persons shall be entitled, in addition thereto, to be paid for no more than 168 working hours at any one time while called by the governor to duty in the active service of the state. This section shall apply to all schools and institutions of learning supported by state funds.” Code of Alabama, § 31-2-13(a) (emphasis added based upon assumption that this part of law may be unconstitutional – see White case cited below).

Although the new law, by its language, applies to private businesses, as well as the State of Alabama and its political subdivisions, the Alabama Supreme Court has held in the past that requiring private employers to grant paid military leave violates the Alabama Constitution. See White v. Associated Industries of Alabama, Inc.373 So.2d 616 (Ala. 1979)(the requirement that employers pay their employees for 21 days a year Guard or Reserve service when they do not work alters working hours and pay provisions in violation of Alabama constitutional provisions forbidding impairment of contracts Art.1 section 6, the due process provision, and Art.1 section 22, the impairment of contracts provision of the Constitution of Alabama, 1901).

The right to paid military leave applies to active duty, active duty for training, and inactive duty training (drills). The 168-hour limit means four work weeks plus one work day, for the typical public employee working 40-hour weeks. After exhausting the right to paid military leave under this section, the public employee has an essentially unlimited right to unpaid military leave under the Federal Uniformed Services Employment and Reemployment Rights Act (USERRA).

While we know of no legal challenges yet brought by private industry to the paid leave part of the law, we expect them by one of the industry associations.

Common Sense Counsel: it is imperative to comply with the law that both public and private employers modify their current military leave policies in accordance with this recently enacted legislative statute. However, those new military leave policies will most likely be different, based upon the White case discussed above, and the advice of your management labor attorney.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com