HB115 By Representative Chestnut RFD Military and Veterans Affairs Rd 1 04-FEB-20

SYNOPSIS: Under existing law, in time of war, armed conflict, or emergency proclaimed by the Governor or by the President of the United States, the provisions of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) apply to any active member of the Alabama National Guard, or a member of the national guard of another state who is employed in the State of Alabama and called or ordered to state active duty or federally funded duty for other than training.

Under USERRA, a person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services may not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, performance of service, or obligation.

This bill would extend application of USERRA to active members of other uniformed services.

This bill would make it a violation of state law to deny a person, who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services, initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, performance of service, or obligation or to discriminate against any member of the uniformed services for exercising those rights and would create a state cause of action against persons who violate those provisions.

A BILL TO BE ENTITLED AN ACT

Relating to rights of members in the military; to amend Section 31-12-2, Code of Alabama 1975, to extend application of the federal Uniformed Services Employment and Reemployment Rights Act to active members of other uniformed services; to make it a violation of state law to deny a person, who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services, initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, performance of service, or obligation and prohibit discrimination against any member of the uniformed services for exercising his or her rights under state law; and to create a state cause of action against persons who violate those provisions.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Section 31-12-2, Code of Alabama 1975, is amended to read as follows:

§31-12-2.

"(a) Whenever any active member of the Alabama National Guard, or a member of the national guard of another state who is employed in this state, in time of war, armed conflict, or emergency proclaimed by the Governor or by the President of the United States, shall be is called or ordered to state active duty or federally funded duty for other than training, the provisions of the federal Servicemembers Civil Relief Act and the federal Uniformed Services Employment and Reemployment Rights Act shall apply.

"(b) Whenever any active member of the Alabama National Guard or a member of the national guard of another state who is employed in this state, Naval Militia, the Alabama State Guard organized in lieu of the National Guard, the civilian auxiliary of the United States Air Force known as the Civil Air Patrol, the National Disaster Medical System, or of any other reserve component of the uniformed services of the United States, in time of war, armed conflict, or emergency proclaimed by the Governor or by the President of the United States, is called or ordered to state active duty or federally funded duty for other than training, the federal Uniformed Services Employment and Reemployment Rights Act shall apply.

"(b) (c) Those active members as defined in subsection (a) called or ordered to active duty for a period of 30 consecutive days or more shall be eligible for military differential pay pursuant to Section 31-12-5 and restoration of annual or sick leave pursuant to Section 31-12-8."

Section 2. (a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

(b) An employer may not discriminate in employment against or take any adverse employment action against any person because the person has engaged in any of the following:

(1) Taken an action to enforce a protection afforded any person under this section and Section 3 of this act.

(2) Testified or otherwise made a statement in or in connection with any proceeding under this section and Section 3 of this act.

(3) Assisted or otherwise participated in an investigation under this section and Section 3 of this act.

(4) Exercised a right provided for in this section and Section 3 of this act.

(c) An employer shall be considered to have engaged in actions prohibited:

(1) Under subsection (a), if the person's membership or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of the membership or obligation for service.

(2) Under subsection (b), if the person's action to enforce a protection afforded any person under this section and Section 3 of this act, testimony or making of a statement in or in connection with any proceeding under this section and Section 3 of this act, assistance or other participation in an investigation under this section and Section 3 of this act, or exercise of a right provided for in this section and Section 3 of this act, is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of the person's enforcement action, testimony, statement, assistance, participation, or exercise of a right.

(d) Any person who is a current or former employee and a current or former member of the uniformed services or a person who has engaged in any actions under subsection (b) whose rights under Section 2 or 3 of this act have been violated by an employer may bring a cause of action against the employer.

(e) For purposes of this section and Section 3 of this act, "uniformed services" means the Alabama National Guard, Naval Militia, the Alabama State Guard organized in lieu of the National Guard, the civilian auxiliary of the United States Air Force known as the Civil Air Patrol, the National Disaster Medical System, or of any other reserve component of the uniformed services of the United States.

Section 3. (a) Any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this section and Section 2 of this act if all of the following are satisfied:

(1) The person, or an appropriate officer of the uniformed service in which the service is performed, has given advance written or verbal notice of the service to the person's employer.

(2) The cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years, except that the period of service shall not include any of the following:

a. Service that is required, beyond five years, to complete an initial period of obligated service.

b. Service during which the person was unable to obtain orders releasing the person from a period of service in the uniformed services before the expiration of the five-year period and the inability was through no fault of the person.

c. Service performed as required pursuant to Section 10147 of Title 10, or Section 502(a) or 503 of Title 32, United States Code, or to fulfill additional training requirements determined and certified in writing by the Secretary concerned, to be necessary for professional development, or for completion of skill training or retraining.

(3) Except as provided in subsection (e), the person reports to, or submits an application for reemployment to, the employer in accordance with subsection (d).

(b) Notice is not required under subdivision (a)(1) if the giving of the notice is precluded by military necessity or, under all of the relevant circumstances, the giving of the notice is otherwise impossible or unreasonable. A determination of military necessity for the purposes of this subsection shall be made pursuant to regulations prescribed by the Secretary of Defense and shall not be subject to judicial review.

(c)(1) An employer is not required to reemploy a person under this section if any of the following are satisfied:

a. The employer's circumstances have so changed as to make the reemployment impossible or unreasonable.

b. The employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that the employment will continue indefinitely or for a significant period.

(2) In any proceeding involving an issue of whether any of the conditions set forth in subdivision (1) exist, the employer shall have the burden of proving the impossibility or unreasonableness, or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period.

(d) Subject to subsection (e), a person referred to in subsection (a), upon the completion of a period of service in the uniformed services, shall notify the employer of the person's intent to return to a position of employment with the employer as follows:

(1) In the case of a person whose period of service in the uniformed services was less than 31 days, by reporting to the employer:

a. Not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence; or

b. As soon as possible after the expiration of the eight-hour period referred to in paragraph a., if reporting within the period referred to in the paragraph is impossible or unreasonable through no fault of the person.

(2) In the case of a person who is absent from a position of employment for a period of any length for the purposes of an examination to determine the person's fitness to perform service in the uniformed services, by reporting in the manner and time referred to in subdivision (1).

(3) In the case of a person whose period of service in the uniformed services was for more than 30 days, but less than 181 days, by submitting an application for reemployment with the employer not later than 14 days after the completion of the period of service or if submitting the application within the period is impossible or unreasonable through no fault of the person, the next first full calendar day when submission of the application becomes possible.

(4) In the case of a person whose period of service in the uniformed services was for more than 180 days, by submitting an application for reemployment with the employer not later than 90 days after the completion of the period of service.

(e) A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services, at the end of the period that is necessary for the person to recover from the illness or injury, shall report to the person's employer, in the case of a person described in subdivision (d)(1) or submit an application for reemployment with the employer, in the case of a person described in subdivision (d)(2) or (d)(3). Except as provided in subdivision (d)(2), the period of recovery may not exceed two years. The two-year period shall be extended by the minimum time required to accommodate the circumstances beyond the person's control which make reporting within the period specified in subdivision (d)(1) impossible or unreasonable.

(f) A person who fails to report or apply for employment or reemployment within the appropriate period specified in subsection (d) shall not automatically forfeit the person's entitlement to the rights and benefits referred to in subsection (a) but shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.

(g) In any determination of a person's entitlement to protection under this act, the timing, frequency, and duration of the person's training or service, or the nature of the training or service, including voluntary service, in the uniformed services, shall not be a basis for denying protection of this act if the service does not exceed the limitations set forth in subdivision (a)(2) and the notice requirements established in subdivision (a)(1) and the notification requirements established in subsection (d) are met.

Section 4. (a) In any action under Section 2 or 3 of this act, the court may award relief as follows:

(1) The court may require the employer to comply with Section 2 or 3 of this act.

(2) The court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of the employer's failure to comply with Section 2 or 3 of this act.

(3) The court may require the employer to pay the person an amount equal to the amount referred to in subdivision (2) as liquidated damages, if the court determines that the employer's failure to comply was willful.

(b) No fees or court costs may be charged or taxed against any person claiming rights under Section 2 or 3 of this act.

(c) If a person who obtained private counsel to bring an action or proceeding under Section 2 of this act prevails in the action or proceeding, the court may award the person reasonable attorney fees, expert witness fees, and other litigation expenses.

Section 5. Notwithstanding any other provision of law, this act does not apply to any officer or employee of the federal government, State of Alabama, or of any political subdivision thereof, or other public board or authority appointed by state or local governing bodies.

Section 6. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Military

Leave of Absence

Armed Forces

Code Amended