Questions and Answers Regarding Amended Military Pay Legislation (Chapter 137 of the Acts of 2003 as amended by Chapter 77 of the Acts of 2005)

What follows are the answers to questions regarding the above military pay legislation.

1. What is the scope of the coverage of this legislation as implied by the term " an employee in the service of the Commonwealth " in the first sentence of Section 1?

Answer: The scope of this legislation includes all state employees. Part-time employees are covered but not intermittent employees or contract employees. Seasonal employees are covered if called up during their seasonal assignment, but they are not entitled to any salary from this bill beyond the normal end of their seasonal assignment. All independent contractors are also excluded.

2. Are the definitions of military and state pay the same under the amended Chapter 77 of the Acts of 2005 as under the previous Chapter 137 of the Acts of 2003?

Answer: No. While the definition of state pay has not changed (see question 5 below), the amended legislation defines military pay to exclude all allowances, such as housing, uniform, combat pay, spousal allowance, etc. as well as overtime pay, shift differential pay, hazardous duty pay or any other additional compensation received for military service. This differs from Chapter 137 of the Acts of 2003 that defined military pay to include allowances and additional compensation.

3. The first sentence of Section 1 states that employees " called to active service in the armed forces of the US after September 11, 2001, shall be entitled to receive pay at his regular base salary as such a public employee" Does this mean that the provisions of this act must be applied both prospectively and retroactively?

Answer: Yes. The legislation applies to all employees called up after September 11, 2001, regardless of whether or not they are still on active duty as of August 26, 2005, the date of the amended legislation. Those called up after September 11, 2001 are eligible to receive their applicable salary differences back to the date that they were called up. Prospectively, the provisions of the act will remain in effect until September 11, 2008.

The 2005 amendment instructs agencies to exclude military pay allowances prior to the calculation of the difference between military pay and state pay on a going forward basis effective immediately. In addition, it also requires that agencies recalculate all amounts previously paid to employees under Chapter 137 of the Acts of 2003 under the new definition of military pay (see above) and pay any additional amounts owed to employees and former employees. Finally, employees that previously did not apply under Chapter 137 of the Acts of 2003 because their military pay with allowances exceeded their state pay may now be eligible for a pay differential under the new definition of military pay used in the amended legislation and will have to be notified of their possible eligibility under the 2005 amendment.

4. The first sentence of Section 1 states that employees covered by the act " shall not lose any seniority, vacation leave, sick leave, personal leave, compensation time, or earned overtime" . Do we need to implement new procedures to satisfy these requirements?

Answer: No, procedures to cover these requirements are already in place. This is already what we permit under USERRA based on the October 18, 2001 memorandum from the Secretary of Administration and Finance. Employees can apply their already accrued time (including earned compensatory time) to their military leave, or bank it, and they continue to accrue sick, vacation and personal while on leave. Seniority is maintained, and credit for service is provided toward step increases. Any overtime that was earned prior to going on leave but not yet paid out will be paid. There will be no negative impact on creditable service for retirement, because all of the call-ups will be longer than 90 days in length, thus qualifying them for veterans' protection against loss of creditable service under Chapter 32, M.G.L.

5. The second sentence of Section 1 states that a covered employee "shall be paid his regular salary as such a public employee for each pay period of such military leave of absence. What components of state pay will be factored in to determine the pay differential to be given to covered employees?

Answer: The applicable state salary will be based on base pay alone and will not include any additional compensation. For those paid under the Technical Pay Law (TPL), use the TPL salary for the basis of determining the differential. Those paid at salary collision rates should have their collision salary used as the basis for comparison. Holiday pay will also be presumed to be part of the state salary.

6. How will the pay differential be determined?

Answer: Detailed instructions for implementing the pay differential adjustments under this act can be found in a memorandum from the State Comptroller and Chief Human Resources Officer, using the following link: doc format of Military Pay Act Memo

7. The last sentence states that " The term "active service" shall not include active duty for training in the army national guard or air national guard or as a reservist in the armed forces of the US." Does this mean that the customary annual tour of duty is not covered by this act?

Answer: The new pay process will not cover the annual tour of duty pay (17 days) nor actions in which the Governor, rather than the President, call the person to emergency duty within the state, as the employees already receive full paid leave for these.

8. How will agencies verify military pay and allowances?

Answer: (Ed. Note: There are several ways that other states use to verify military pay when paying the difference between military and state salary. We recommend using either option a or b (below), because it is least bureaucratic, puts the onus on the employee to get us the information, and would be the most accurate.)

a. Use copies of Military Leave and Earnings Statements (LES). Ask the employees to send the agency payroll office copies of their Military Leave and Earnings Statements (LES).

b. Use a letter from the Active Duty Department of the particular service branch. If LES statements are not available, an acceptable alternative is a letter from the Active Duty Department of the particular service branch in which the employee was enlisted (contact information can be obtained by calling the Customer Service line of the Defense Finance & Accounting Service-(800-332-7411). It is our understanding that the military can provide summary pay information (retroactive annual or multi-year) on these letters. These letters take about a month to obtain and will be faxed to the employee upon request.

c. Use the original active duty orders. The orders contain the salary and allowances on them. (About three states use these.) The drawback to this approach is that the total pay may vary after the orders are given, so that we may be in the position of overpaying or underpaying. The group dislikes this approach.

d. Contact the paying authority by phone to verify pay. One state does this. It involves having to get the written permission of the employee first, to release the pay information. It puts the onus on us to get the information, but it also probably the most accurate means of verifying the information and not as administratively burdensome on the employee and/or family. This option is considered less preferable, because of the centralized burden it places on HRD.