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The Truth About Differential Pay

We recently obtained a favorable differential pay verdict on behalf of one of our Reservist clients. The case, which concerned the pay the Reservist was due from his Federal Government employer while he was on U.S. military duty, raised many interesting and important points, particularly for those who are in the Reserves and National Guard, and certainly for Reservists and Guardsmen who are trying to collect differential pay. Read the verdict here.

Under a 2009 Federal Statute, 5 U.S.C. § 5538, when a federal employee is absent from his civilian job to perform active duty in the military, his employing agency may be required

to pay him differential pay—the difference between his civilian pay and his military pay.  It is now likely mandatory for the Federal Government to provide differential pay to Reservists and Guardsmen when they go on active duty orders during a period of national emergency, voluntarily or involuntarily. Differential pay is required only if (among other things) the employee was ordered to active duty under one of several enumerated Title 10 sections, most of which are “involuntary” activations, or under “any other provision of law during a war or during a national emergency declared by the President or Congress.”

In our case, the relevant facts were undisputed. Our client volunteered for active duty under § 12301(d) during a declared national emergency. Since September 14, 2001, the United States has been under a national emergency called Presidential Proclamation 7463. This state of national emergency was first ordered by President George W. Bush, has been renewed each year since and most recently was continued by President Obama for another year on Sept. 4, 2014. The only dispute in the case was whether our client’s voluntary military service was protected by the catch-all provision: “any other provision of law during a war or during a national emergency declared by the President or Congress.

Our client’s employer (an agency within the Department of Defense) refused to pay him his differential pay because 10 U.S.C. § 12301(d), the statutory section under which he was ordered to active duty, is a “voluntary” period of military service while the other statutory sections listed are “involuntary” periods of service. And even though our client’s military pay was less than his civilian pay, his employer refused to pay him the difference because it contended that voluntary military duty under § 12301(d) does not qualify for differential pay.. It is the last “catch-all” phrase that turned the tide in our favor. The trial judge found that there is no basis in the statutory text to limit the catch-all clause, which covers “any other provision of law,” during a national emergency and he granted our client his differential pay.

Our successful verdict greatly increases the likelihood for military Reservists and Guardsmen to receive the differential pay to which they are entitled. The government has appealed the trial judge’s decision, but we are confident that the appeal will support the trial court, and affirm the fact that differential pay is required when a Federal employee who is also a Reservist or Guardsman goes on military orders during a period of national emergency, voluntarily or involuntarily. If we win the appeal, this decision will become binding on all other Merit Systems Protection Board judges, which means that every Reservist or Guardsman who is also a Federal employee and has performed voluntary or involuntary active duty service since 2009 will be entitled to receive the difference in pay between his Federal Government job and his military job.

If you work or have worked for the Federal Government and are or were also a Reservist or National Guardsman, please contact us directly for a free consultation. You may be entitled to the differential pay between your Federal Government pay and your military pay.