The U.S. Supreme Court on April 30 clarified that differential pay is available to military reservists serving during a national emergency without them having to make the extra showing that their service has a substantive connection to a particular national emergency.
Differential pay — also commonly called “top-up pay” — is the difference between a service member’s civilian pay and their military pay, said Mark Girouard, an attorney with Nilan Johnson Lewis in Minneapolis, leading up to the court’s 5-4 decision. Civilian pay is usually higher than military pay.
Because some national emergencies have been in effect for years, such as the annually renewed emergency in response to the Sept. 11, 2001, terrorist attacks, the court’s ruling greatly expands which reservists are eligible for differential pay during “contingency operations.”
Justice Clarence Thomas — writing for the dissent — said, “It strains credulity to think that Congress could have meant ‘contingency operation’ to mean, as a practical matter, essentially every military operation.”
But the majority opinion, written by Justice Neil Gorsuch, said that a plain reading of statutory language dictated a ruling in the favor of the plaintiff. A ruling against the plaintiff would have left unanswered the question of whether the law fairly informs a private employer what is and is not prohibited when providing differential pay, the Supreme Court said.
The plaintiff, Nick Feliciano, was a...
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