Attorneys Patrick Bryant and James Hykel Win Paid Military Leave For (All) Commonwealth and (Some) Municipal Employees

Thanks to the work of Attorneys Patrick Bryant and James Hykel, the Appeals Court has affirmed that military personnel in the employ of Commonwealth of Massachusetts and certain municipalities will receive up to 40 individual days of annual paid military leave, for service including training, drills, parades and deployment, per fiscal year. The litigation was inspired and supported by Pyle Rome Ehrenberg, PC client Innovets, which advocates for military veterans in public service.

Section 59(a) of Chapter 33 of Massachusetts General Laws entitles Commonwealth employees to certain paid military leave for up to 40 days a federal fiscal year on active duty or service, or required to attend training, parades or drills. While the law automatically applies to Commonwealth employees, it applies to only to municipalities that have adopted the law.

Decades ago, the statute provided paid military leave for "an annual tour of duty of not exceeding seventeen days." It did not define "day." In 2000, the Massachusetts Appeals Court determined that the military leave applied only to scheduled days of work within a consecutive 17-day period and that "day" referred to a calendar day. Thus, an employee would not necessarily receive 17 days of paid military leave. And an employer could count as two days any scheduled shift within the consecutive 17-day period that begins and ends on different calendar days (such as overnight shifts or 24-hour shifts of fire fighters). 

The Legislature has amended Section 59 multiple times. Now the language reads "during service in the uniformed services, annual training under section 60 or drills and parades under section 61, not exceeding 40 days in any federal fiscal year." Section 59 now expressly defines "day": "For the purposes of this subsection, 'day' shall mean any 24-hour period regardless of calendar day."

Robert Driscoll was a Melrose Firefighter also served as an officer in the U.S. Air Force and Air National Guard. As a firefighter, he worked approximately eight 24-hour shifts (7 a.m. - 7.a.m.) a month. A day of paid leave under his Union's collective bargaining agreement counts as one 12-hour shift. Thus, a firefighter taking leave from a 24-hour shift uses two "days" of paid leave.

In Federal Fiscal Year 2020, Driscoll missed 42 24-hour shifts for military service, including deployment to active service. In Fiscal Year 2021, he missed 73 24-hour shifts and one 14-hour shift, also including deployment for active service. The City of Melrose however paid him only for for 20 24-hour shifts in each fiscal year, claiming that one 24-hour shift counts as two "days" under the law. Although the City paid military leave on non-consecutive days and beyond a 40-day consecutive period, the City argued in court that military service members were entitled only to paid leave for scheduled shifts within a consecutive 40-day period, rather than 40 individual days of paid leave.

Driscoll filed a claim against the City for its erroneous interpretation of Section 59. By the time the case reached the Massachusetts Appeals Court, he retired both from the military and the Fire Department.

The Appeals Court agreed that the City's actions defined the plain and express meaning of the law. The Court wrote, "The plain and ordinary meaning of G. L. c. 33, § 59 (a), is that a public employee must be compensated for forty days of military leave per Federal fiscal year, whether or not they are consecutive." Further, "Regarding whether a twenty-four hour shift counts as one day of service, the statute is explicit: '"day" shall mean any 24-hour period regardless of calendar day.'"

This decision represents a significant victory for military service members in the employment of the Commonwealth and in municipalities that have adopted G.L. c.33, Section 59.