AGO 88-7.

Case Date:November 07, 1988
Colorado Attorney General Opinions 1988. AGO 88-7. November 7, 1988Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 88-7 AG Alpha No. PE AD AGAQV Ms. Jo Ann Soker Executive Director Department of Personnel 1313 Sherman Street, First Floor Denver, CO 80203 RE: Modification of Military Leave of Absence Fringe BenefitDear Ms. Soker: I am writing in response to your request dated October 3, 1988 for a formal Attorney General's opinion upon the issue of whether the provisions of Section 28-3-601, C.R.S. (1982), may be modified to reduce wages payable to public employees upon military leave of absence. QUESTIONS PRESENTED AND CONCLUSIONS What external constraints (such as federal law, case law, etc.) limit the state's ability to reduce or eliminate wages payable to public employees on military leave? None. Would a statutory change be required to modify the state's military leave policy to reduce wages for employees on military leave of absence? Yes. Can the State Personnel Board amend its rules to change compensation practices in order to conform to prevailing practices? Yes, but only for fringe benefits which are not provided by statute. ANALYSIS The matter of wages payable during military leave of absence is not addressed by federal statute or regulation. Compensation is authorized for each regular period of instruction or duty, 37 U.S.C. Section 206 (1986). No limitation upon payment is expressed there. Although active duty reserves are permitted to continue to receive compensation from their employers, 10 U.S.C. Section 1033 (1956), reserves on inactive duty are afforded no similar protection. Reservists "shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation" arising from their membership in the reserves, 38 U.S.C. Section 2021(b)(3) (1986). Congress has twice requested employers to "abide" by the provisions of Section 2021 by granting reserve members leave of absence exclusive of earned vacation time. Pub. L. No. 92-252, Title XI Section 1130, 96 Stat. 759 (1982), and Pub. L. No. 99-290, Section 1, 100 Stat. 413 (1986). The provisions of 28 U.S.C. Section 2021 have been applied to protect a reservist's right to time off from work to travel to and attend inactive duty training, Sawyer v....

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