South Dakota State Employee Military Differential Pay

Section 3-8-14 gives any employee of the State of South Dakota who is a member of the South Dakota National Guard or any other reserve component and is ordered into Title 10 or Title 32 service after January 1, 2002, other than for training purposes, the difference between the employee's state salary or wage rate at the time of activation and the employee's military salary and allowances, for the time engaged in that active federal service. The difference is paid at least quarterly. Four details decide cases. It is a difference, not a supplement. Where military pay and allowances exceed the state salary, which happens to junior employees drawing a housing allowance, the section produces nothing. "Salary and allowances" is the military side of the comparison, so basic allowance for housing and basic allowance for subsistence count against the employee rather than being set aside. That is a narrower calculation than states that compare base pay to base pay. Title 32 is included. Many state differential pay statutes reach only Title 10 federal activation and leave a Guard member on a Title 32 full-time mission outside. This one names both. Training is excluded. Annual training and drill are outside the section, so the ordinary two weeks does not trigger it. The benefit belongs to employees of the State of South Dakota. Counties, municipalities and school districts are not named, unlike in the veterans preference chapter, so a county employee's differential pay depends on local policy. A separate provision handles elected service. Section 3-4-8 lets a member of the governing body of a county, municipality, school district, township or special purpose district who is a Guard or reserve member called to active duty, and who cannot attend meetings as a result, temporarily resign. Notice is given in the same manner as an ordinary resignation, a temporary replacement is appointed under whatever statute governs that body, and the temporary member serves until the member returns from active duty or the term expires, whichever comes first. The seat is held rather than lost. Neither of these displaces the federal reemployment rights in USERRA, which 33A-2-9 separately extends by state law to a member of any state's National Guard ordered to active duty by that state's governor.