Did a Wyoming state employee who served in another state's National Guard qualify for Wyoming's 15 days of paid military leave, and how did that interact with the Governor's differential-pay executive order?
Plain-English summary
Wyoming's HR Administrator David Urquidez asked Attorney General Peter Michael two questions about military leave for state employees:
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Does a Wyoming state employee who serves in another state's National Guard get paid military leave under Wyo. Stat. Ann. § 19-11-108(a)? Yes. The statute grants 15 calendar days of paid military leave each year to "[a]ny member of the Wyoming national guard or United States military forces reserve" who is a state officer or employee. Federal law (10 U.S.C. § 10101 and § 101(c)) treats every state's National Guard as a reserve component of the U.S. armed forces. So a state employee who serves in another state's National Guard is, by federal definition, a member of the "United States military forces reserve" and qualifies.
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How does Executive Order 2013-2 fit with the 15-day paid leave? They are separate and stack. Executive Order 2013-2 (issued under the authority of § 19-11-106(a), which lets any employer in Wyoming pay compensation to employees on military service) gives state employees who left state employment for uniformed service the difference between their state base pay and their military base pay. Read together with § 19-11-108(a), the result was:
- Members of the Wyoming National Guard or United States military forces reserve get 15 calendar days at full state pay (no differential pay needed during those days, because they are already getting full state pay), and then differential pay for service beyond the 15 days.
- State employees in uniformed service who are not members of the Wyoming National Guard or U.S. military forces reserve do not get the 15 paid days but are eligible for differential pay for the entire period.
The opinion's key interpretive move was reading "United States military forces reserve" against federal Title 10. The phrase is undefined in the Wyoming Act, and the AG looked to federal law for the commonly accepted meaning, citing Olsen v. State, 2003 WY 46, 67 P.3d 536 (Wyo. 2003), and Capwell v. State, 686 P.2d 1148 (Wyo. 1984), for the canon that "the legislature enacts legislation with full knowledge of existing law and with reference to other statutes." Once the federal definitions were imported, the answer to question 1 followed mechanically.
Currency note
This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
The Military Service Relief Act, Wyo. Stat. Ann. §§ 19-11-101 et seq., is Wyoming's statutory protection for citizens who leave their employment, homes, or education to serve. Section 19-11-102 sets the policy: liberal construction in favor of those called to military service, and the Act prevails over any contract or policy that would reduce its benefits.
Section 19-11-108(a) gives a 15-calendar-day per year paid military leave to state, political-subdivision, municipal-corporation, public-agency, and community-college employees who are "member[s] of the Wyoming national guard or United States military forces reserve." Section 19-11-106(a) authorizes any private or public employer in Wyoming to pay compensation to employees who leave employment to perform service in the uniformed services, on a uniform basis. Executive Order 2013-2 is the Governor's exercise of that authority for the State as employer; it sets the differential pay equal to the difference between the employee's state base pay (including longevity pay) and the employee's military base pay.
The opinion drew the federal background from 10 U.S.C. § 10101 (which lists the reserve components: Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, Coast Guard Reserve) and 10 U.S.C. § 101(c) (which defines "Army National Guard of the United States" and "Air National Guard of the United States" as the reserve components composed entirely of National Guard members). Once read together, every National Guard member in any state is, by definition, a member of a reserve component of the United States armed forces.
Common questions
Q: How many days of paid military leave does Wyo. Stat. Ann. § 19-11-108(a) grant?
A: As of this 2014 opinion, the statute granted 15 calendar days per calendar year, to be used for service in the uniformed services, on top of any other leave or vacation the employee was otherwise entitled to.
Q: Does the Wyoming statute apply to local government and school employees?
A: According to the statutory text, yes. § 19-11-108(a) applied to officers or employees of "this state or any political subdivision, municipal corporation or any public agency or entity of the state, including community colleges."
Q: What does 'United States military forces reserve' mean?
A: The Wyoming Act does not define it. The AG looked to federal Title 10. Under 10 U.S.C. § 10101, the reserve components of the armed forces include the Army National Guard of the United States, the Army Reserve, the Navy Reserve, the Marine Corps Reserve, the Air National Guard of the United States, the Air Force Reserve, and the Coast Guard Reserve. Membership in any state's National Guard makes the employee a member of a federally recognized reserve component.
Q: What about a state employee not in the Wyoming National Guard or any reserve, who is called up for some other uniformed service?
A: They did not get the 15 days of paid leave under § 19-11-108(a), but they were eligible for the differential pay under Executive Order 2013-2 for the entire period of service.
Q: Did the 15 days of paid leave overlap with differential pay?
A: Not in practice. During the 15 days the employee received full state pay, so there was no differential to make up. Differential pay kicked in for service beyond the 15 days.
Q: What if a private collective bargaining agreement gave more generous military leave than § 19-11-108(a)?
A: It controlled. § 19-11-102(d) said the Act did not supersede more beneficial contracts or policies. § 19-11-102(e) said the Act did supersede less beneficial ones.
Q: Is the analysis still good today?
A: The opinion was issued in 2014. The federal statutory definitions in 10 U.S.C. §§ 101(c) and 10101 are durable, but Wyoming's Act and Executive Order 2013-2 may have been amended or rescinded. Verify the current text of the Wyoming Military Service Relief Act and any active executive orders before relying on the specific dollar amounts or day counts here.
Citations and references
Wyoming statutes:
- Wyo. Stat. Ann. § 19-11-102(a), (b), (d), (e)
- Wyo. Stat. Ann. § 19-11-103(a)(ix) and (xi)
- Wyo. Stat. Ann. § 19-11-106(a)
- Wyo. Stat. Ann. § 19-11-108(a) and (e)
Federal statutes:
- 10 U.S.C. § 101(c)
- 10 U.S.C. § 10101
Executive order:
- Wyoming Executive Order 2013-2 (differential pay for state employees on military service)
Cases:
- Olsen v. State, 2003 WY 46, 67 P.3d 536, 596 (Wyo. 2003)
- Capwell v. State, 686 P.2d 1148, 1152 (Wyo. 1984)
Source
- Landing page: https://ag.wyo.gov/formal-opinions
- Original PDF: https://drive.google.com/file/d/0B-uookG6TajHVmRtNVBwYmNoQk0/view?resourcekey=0-RVyu0nnU8mzIkctKuynPDw
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
Office of the Attorney General
Civil Division
123 State Capitol
Cheyenne, Wyoming 82002
307-777-7886 Telephone
307-777-3687 Fax
Governor Matthew H. Mead
Attorney General Peter K. Michael
Chief Deputy Attorney General John G. Knepper
Division Deputy Martin L. Hardsocg
May 29, 2014
Formal Opinion 2014-001
David Urquidez, Administrator
Human Resources Division
Department of Administration & Information
2001 Capitol Avenue
Cheyenne, Wyoming 82002
RE: Paid Military Leave
Dear Mr. Urquidez:
You asked the following questions concerning the Military Service Relief Act:
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Whether a state employee is entitled to paid military leave under Wyo. Stat. Ann. § 19-11-108(a) to perform duties as a member of a National Guard unit organized in another state.
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How does Executive Order 2013-2 interact with Wyo. Stat. Ann. § 19-11-108(a)?
Background
The purpose of the Military Service Relief Act is to ensure that Wyoming citizens who serve their country and state and who leave their employment, homes, and education will be neither penalized nor economically disadvantaged because of such service. Wyo. Stat. Ann. § 19-11-102(a). The Act must be liberally construed for the benefit of those called to military service. Wyo. Stat. Ann. § 19-11-102(b). The Act does not supersede any contract, agreement, policy, practice, or other matter that establishes a right or benefit that is more beneficial than those provided by the Act. Wyo. Stat. Ann. § 19-11-102(d). However, the Act supersedes any contract, agreement, policy, practice, or other matter that reduces, limits, or eliminates any right or benefit provided by the Act. Wyo. Stat. Ann. § 19-11-102(e).
Among other things, the Act provides benefits for employees who leave employment to perform service in the uniformed services. Two provisions of the Act are relevant to your questions. The first relates to paid military leave for state employees who are members of the Wyoming National Guard or United States military forces reserve:
Any member of the Wyoming national guard or United States military forces reserve who is an officer or employee of this state or any political subdivision, municipal corporation or any public agency or entity of the state, including community colleges, shall be given a military leave of absence with pay at the regular salary or wage which the employee normally receives, not to exceed fifteen (15) calendar days in any one (1) calendar year to perform service in the uniformed services in addition to any other leave or vacation time to which the person is otherwise entitled.
Wyo. Stat. Ann. § 19-11-108(a). The second provision relates to compensation for all employees, not only those who are members of the Wyoming National Guard or United States military forces reserve, who leave employment to perform military service:
Any private or public employer in this state is hereby authorized to pay compensation to any employee who leaves employment to perform service in the uniformed services. If the employer elects to pay the compensation, it shall be paid on a uniform basis to all such employees of that employer.
Wyo. Stat. Ann. § 19-11-106(a).
The Governor accepted the legislature's invitation to compensate state employees who leave employment to perform military service whose military pay is less than their state pay, and proclaimed:
Every state employee who took a leave of absence from state employment on or after September 1, 2001, to perform service in the uniformed services, upon proper application, shall be eligible to receive an amount equal to the difference between their monthly base pay, including longevity pay, in state employment at the time they left state employment and their monthly base pay in the uniformed services.
State of Wyoming Executive Order 2013-2.
Question 1: Whether a state employee is entitled to paid military leave under Wyo. Stat. Ann. § 19-11-108(a) to perform duties as a member of a National Guard unit organized in another state.
Yes. An employee of the State of Wyoming who serves as a member of a National Guard unit in another state is entitled to paid military leave for up to 15 days per year. The Military Service Relief Act grants up to 15 days of paid military leave per calendar year to state employees who are members of the Wyoming National Guard or United States military forces reserve. Wyo. Stat. Ann. § 19-11-108(a). Since a member of a National Guard unit organized in another state is not a member of the Wyoming National Guard, you have asked whether these individuals are eligible for the same paid leave. This depends on whether a member of a National Guard unit organized in another state should be considered a member of the United States military forces reserve.
To answer this question, it is necessary to ascertain the meaning of the phrase "United States military forces reserve." It is not defined in the Act, and we must therefore look elsewhere to learn its meaning. Considering the legislature has conditioned eligibility for military benefits on an employee's status as determined by federal law, it is appropriate to look to federal law to determine whether there is a commonly accepted meaning for this phrase. See Olsen v. State, 2003 WY 46, ¶ 168, 67 P.3d 536, 596 (Wyo. 2003) (quoting Capwell v. State, 686 P.2d 1148, 1152 (Wyo. 1984)) ("the legislature enacts legislation with full knowledge of existing law and with reference to other statutes").
Title 10 of the United States Code governs all federal military forces. Pursuant to Title 10, the reserve components of the armed forces are the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Coast Guard Reserve. 10 U.S.C.A. § 10101. Title 10 provides the following definitions relating to the reserve components:
(1) The term "National Guard" means the Army National Guard and the Air National Guard.
(2) The term "Army National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive, that—
(A) is a land force;
(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;
(C) is organized, armed, and equipped wholly or partly at Federal expense; and
(D) is federally recognized.
(3) The term "Army National Guard of the United States" means the reserve component of the Army all of whose members are members of the Army National Guard.
(4) The term "Air National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive, that—
(A) is an air force;
(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;
(C) is organized, armed, and equipped wholly or partly at Federal expense; and
(D) is federally recognized.
(5) The term "Air National Guard of the United States" means the reserve component of the Air Force all of whose members are members of the Air National Guard.
10 U.S.C.A. § 101(c).
Under the plain language of these federal statutes, the National Guard units of the several states are considered to be reserve components of the United States armed forces. Applying this fact to Wyo. Stat. Ann. § 19-11-108(a), and the legislature's use of the phrase "United States military forces reserve" for purposes of entitlement to paid military leave, a state employee who is a member of a National Guard unit organized in another state is also a member of the United States military forces reserve. As a member of the United States military forces reserve, such an employee is entitled to paid military leave under Wyo. Stat. Ann. § 19-11-108(a). This conclusion is consistent with the mandate in Wyo. Stat. Ann. § 19-11-108(e) that the provision for paid military leave be liberally construed in favor of members of the Wyoming National Guard or United States military forces reserve.
Question 2: How does Executive Order 2013-2 interact with Wyo. Stat. Ann. § 19-11-108(a)?
The differential pay authorized by Executive Order 2013-2 is separate, and in certain circumstances in addition to, the benefits authorized by Wyo. Stat. Ann. § 19-11-108(a). The Military Service Relief Act grants up to 15 days of paid military leave per year to state employees who are members of the Wyoming National Guard or United States military forces reserve. Wyo. Stat. Ann. § 19-11-108(a). The Act also provides that any employer in the state may compensate employees who leave employment to perform military service. Wyo. Stat. Ann. § 19-11-106(a). Pursuant to this authority, the Governor, by Executive Order 2013-2, made state employees who leave employment to perform military service eligible to receive an amount equal to the difference between their state pay and their military pay.
Wyoming Statute § 19-11-108(a) and Executive Order 2013-2, read together, provide that state employees who leave employment to perform military service and who are members of the Wyoming National Guard or United States military forces reserve are entitled to receive 15 days of paid military leave per year and are eligible to receive differential pay for service exceeding 15 days. Of course, within the 15 days, these employees are on paid leave and receive their full state pay, so there is no pay differential that would need to be made up under the executive order. State employees who leave employment to perform military service who are not members of the Wyoming National Guard or United States military forces reserve, on the other hand, are not entitled to 15 days of paid military leave per year but are eligible to receive differential pay for any period of service.
Conclusion
A state employee who is a member of a National Guard unit organized in another state is also a member of the National Guard of the United States, which is a reserve component of the armed forces of the United States. As a member of the United States military forces reserve, such an employee is entitled to paid military leave under Wyo. Stat. Ann. § 19-11-108(a). Further, the differential pay authorized by Executive Order 2013-2 is separate, and in certain circumstances in addition to, the benefits authorized by Wyo. Stat. Ann. § 19-11-108(a). If you have any further questions, please do not hesitate to contact this office.
Sincerely,
Peter K. Michael
Attorney General
Martin L. Hardsocg
Deputy Attorney General
Megan L. Nicholas
Senior Assistant Attorney General