LRB-3956/2
GMM/PJK/RAC:cs:ch
2001 - 2002 LEGISLATURE
October 16, 2001 - Introduced by
Veterans and Military Affairs. Referred to
Committee on Veterans and Military Affairs.
AB572,1,4
1An Act to create 21.80, 106.54 (7), 111.91 (2) (gm), 230.32 (7) and 230.45 (1) (m)
2of the statutes;
relating to: reemployment rights after national guard or state
3defense force service, providing an exemption from emergency rule-making
4procedures, and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Introduction
Under current federal law, the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) provides certain reemployment rights
and benefits to persons who are absent from employment because of service in the
armed forces or the national guard under federal law (service in the uniformed
services). USERRA, however, does not cover person who are absent from
employment because of service in the national guard or the state defense force under
state law or because of certain service in the national guard under federal law that
is not considered to be service in the uniformed services under USERRA (active
service). This bill provides for persons who are absent from employment because of
active service under state law certain reemployment rights and benefits that are
parallel to the reemployment rights and benefits that are provided under USERRA
for persons who are absent from employment because of service in the uniformed
services under federal law.
Entitlement to reemployment rights
The bill requires any employer, including the state, employing one or more
persons on a permanent basis to reemploy a person who is entitled to reemployment
under the bill promptly on completion of the person's active service unless the
employer's circumstances have so changed as to make reemployment of the person
impossible or unreasonable, the position that the person left to perform active service
was for a brief, nonrecurrent period and there was no reasonable expectation that
the employment would continue, or, in the case of a person who is not qualified for
reemployment, the accommodations, training, or effort required to qualify the
person for reemployment would pose an unreasonable hardship on the employer. A
person is entitled to reemployment under the bill if all of the following prerequisites
are met:
1. The employer has been given advanced notice of the active service, unless
the giving of advanced notice was precluded by military necessity or was otherwise
impossible or unreasonable.
2. Subject to certain exceptions, the cumulative length of all absences from
employment with the employer because of active service or service in the uniformed
services does not exceed five years.
3. The person reports back to work or applies for reemployment within the time
frames required under the bill. If the person was in active service for less than 31
days, the person must report back to work at the first full regularly-scheduled work
period following completion of the active service, plus a reasonable time for safe
transportation home and an eight-hour rest period. If the person was in active
service for more than 30, but less than 181, days, the person must apply for
reemployment within 14 days after completion of the active service. If the person
was in active service for more than 180 days, the person must apply for
reemployment within 90 days after completion of the active service. In addition, the
bill extends those periods for reporting back to work or applying for reemployment
by up to two years for hospitalization or convalescence for an illness or injury
incurred in or aggravated during the active service.
4. The person's service in the national guard or state defense force was not
terminated under other than honorable conditions.
A person who is performing active service on the effective date of the bill is
entitled to reemployment under the bill if the person reports back to work or applies
for reemployment on or after the effective date of the bill and otherwise meets the
prerequisites for reemployment under the bill.
Reemployment positions
The bill specifies the type of position in which a person must be reemployed on
returning from active service as follows:
1. If the person was in active service for less than 91 days, the person must be
reemployed in the position in which the person would have been employed if the
person's employment had not been interrupted by the active service so long as the
person is qualified to perform the duties of the position or, if after reasonable efforts
by the employer to qualify the person to perform those duties the person is not
qualified to perform those duties, in the position in which the person was employed
before the active service.
2. If the person was in active service for more than 90 days, the person must
be reemployed in the position in which the person would have been employed if the
person's employment had not been interrupted by the active service or in a position
of like seniority, status, and pay so long as the person is qualified to perform the
duties of the position or, if after reasonable efforts by the employer to qualify the
person to perform those duties the person is not qualified to perform those duties, in
the position in which the person was employed before the active service or in a
position of like seniority, status, and pay.
3. If the person has a disability that was incurred in or aggravated during the
active service and if after reasonable efforts by the employer to accommodate the
disability the employee is not qualified due to the disability to perform the duties of
the position in which the person would have been employed if the person's
employment had not been interrupted by the active service, the person must be
reemployed in any other position that is equivalent to that position in seniority,
status, and pay, the duties of which the person is qualified to perform or would be
qualified to perform with reasonable efforts by the employer, or, if no equivalent
position is available, in a position that is the nearest approximation to that
equivalent position in terms of seniority, status, and pay, consistent with the person's
circumstances.
4. If the person is not qualified to be employed in the position in which the
person would have been employed if the person's employment had not been
interrupted by the active service or in the position in which the person was employed
before the active service for any reason other than disability incurred in or
aggravated during the active service and cannot become qualified to be so employed
with reasonable efforts by the employer, the person must be reemployed in any other
position that the person is qualified to perform and that is the nearest approximation
to the position in which the person would have been employed if the person's
employment had not been interrupted by the active service or, if no position that is
the nearest approximation to that position is available, in a position that the person
is qualified to perform and that is the nearest approximation to the position in which
the person was employed before the active service began.
Seniority and other rights and benefits
The bill also specifies that a person who is absent from employment because of
active service is entitled to certain other rights and benefits as follows:
1. On reemployment, the person is entitled to the seniority and other rights and
benefits determined by seniority that the person would have had if the person's
employment had not been interrupted by the active service.
2. While absent from employment, the person is considered to be on furlough
or leave of absence and is entitled to all rights and benefits not determined by
seniority that are generally provided by the employer to employees having similar
seniority, status, and pay who are on furlough or leave of absence.
3. While absent from employment, the person may continue health coverage
for the person and his or her dependents for up to 18 months or until the day after
the date on which the person is required to report back to work or apply for
reemployment, whichever occurs first. If the person's health coverage is terminated
because the person is in active service, the person is entitled to reinstatement of
health coverage on reemployment with no exclusion or waiting period that would not
have been imposed had the coverage not been terminated because of the active
service. A person who is performing active service on the effective date of the bill or
a dependent or personal representative of the person may elect to continue health
coverage for the remainder of that 18-month period or until the day after the date
on which the person is required to report back to work or apply for reemployment,
whichever occurs first.
4. The person may not be discharged from employment, except for cause, for
180 days after reemployment, if the active service was for more than 30 days, but less
than 181 days, and for one year after reemployment, if the active service was for more
than 180 days.
Enforcement
Finally, the bill provides a procedure for the enforcement of a person's rights
under the bill. Specifically, the bill permits a person who believes that his or her
employer has failed or refused, or is about to fail or refuse, to provide to the person
any reemployment right or benefit to which the person is entitled under the bill to
file a complaint with the adjutant general who must then investigate the complaint.
If the adjutant general is reasonably satisfied that the person is entitled to the rights
or benefits sought, the adjutant general must endeavor to resolve the complaint by
conference, conciliation, or persuasion. If the adjutant general is not able to resolve
the complaint, the person may request the adjutant general to refer the complaint
to counsel appointed by the governor for the purpose of prosecuting such complaints
who must file a complaint for appropriate relief with the department of workforce
development (DWD) or, if the person is an employee of a state agency, the personnel
commission. The bill also permits a person to file a complaint with DWD or the
personnel commission on the person's own behalf without filing a complaint with the
adjutant general or requesting the adjutant general to refer the complaint to counsel.
DWD or the personnel commission must process the complaint in the same
manner that employment discrimination complaints are processed under the fair
employment law. If DWD or the personnel commission finds that an employer has
failed or refused, or is about to fail or refuse, to provide any reemployment right or
benefit to which a person is entitled under the bill or has discharged or otherwise
discriminated against any person in retaliation for attempting to enforce any rights
provided under the bill, DWD or the personnel commission may order the employer
to do any one or more of the following:
1. Take such action as will fully vindicate the rights and benefits of the person
under the bill.
2. Compensate the person for any loss of wages, salary, or other benefits
suffered because of the failure or refusal to provide reemployment rights or benefits
or the discharge or other discrimination.
3. Pay the person, as liquidated damages, an amount that is equal to the
amount of compensation ordered, if DWD or the personnel commission finds that the
failure or refusal to provide reemployment rights or benefits or the discharge or other
discrimination was willful.
4. Pay the person costs and reasonable actual attorney fees, if the person is not
represented by counsel appointed by the governor.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB572, s. 1
1Section
1. 21.80 of the statutes is created to read:
AB572,5,3
221.80 Reemployment rights after national guard or state defense force
3service. (1) Definitions. In this section:
AB572,5,74
(a) "Active service" means active service in the national guard or the state
5defense force under an order of the governor issued under this chapter or active
6service in the national guard under
32 USC 502 (f) that is not considered to be service
7in the uniformed services.
AB572,5,148
(b) "Employer" means a person engaging in any activity, enterprise, or business
9in this state employing one or more persons on a permanent basis. "Employer"
10includes the state and any office, department, independent agency, authority,
11institution, association, society, or other body in state government created or
12authorized to be created by the constitution or any law, including the legislature and
13the courts. "Employer" also includes a successor-in-interest of a person employing
14an individual who has provided notice to that person under sub. (3) (a).
AB572,5,1515
(c) "Health benefit plan" has the meaning given in s. 632.745 (11).
AB572,5,1716
(d) "Qualified" means having the ability to perform the essential tasks of an
17employment position.
AB572,5,2018
(e) "Reasonable efforts" means, with respect to an action required by an
19employer under sub. (4) (a) 1., 2., 3., or 4., an action that does not place an undue
20hardship on the employer.
AB572,6,2
1(f) "Service in the uniformed services" has the meaning given in
38 USC 4303 2(13).
AB572,6,53
(g) "Undue hardship" means, with respect to an action required by an employer
4under sub. (4) (a) 1., 2., 3., or 4., significant difficulty or expense, when considered
5in light of all of the following:
AB572,6,66
1. The nature and cost of the action.
AB572,6,107
2. The overall financial resources of the facility involved in providing the action,
8the number of persons employed at the facility, the effect of providing the action on
9the resources and finances of the facility, and any other impact of the action on the
10operation of the facility.
AB572,6,1311
3. The overall financial resources of the employer, the number of persons
12employed by the employer, and the number, type, and location of the employer's
13facilities.
AB572,6,1714
4. The type of operation of the employer, including the composition, structure,
15and functions of the employer's workforce, the geographic separateness from the
16employer of the facility involved in providing the action, and the administrative and
17financial relationship of the facility to the employer.
AB572,6,21
18(2) More generous rights permitted. Nothing in this section prohibits an
19employer from providing employees who are called into active service with
20reemployment rights and benefits that are more generous to the employee than the
21rights and benefits provided under this section.
AB572,6,24
22(3) Reemployment rights. (a)
Prerequisites. Subject to par. (d), any person who
23is absent from a position of employment because of active service is entitled to the
24reemployment rights and benefits specified in this section if all of the following apply:
AB572,7,3
11. Except as provided in par. (b), the person or an appropriate officer in the
2national guard or the state defense force has given advanced notice of the active
3service to the person's employer.
AB572,7,74
2. Except as provided in par. (c), the cumulative length of the absence from the
5position of employment and of all previous absences from a position of employment
6with the employer by reason of active service or service in the uniformed services
7does not exceed 5 years.
AB572,7,98
3. Except as provided in par. (f), the person reports to the employer or submits
9an application for reemployment to the employer as required under par. (e).
AB572,7,1110
4. The person's service in the national guard or the state defense force has not
11been terminated under other than honorable conditions.
AB572,7,1612
(b)
Notice not required. No notice is required under par. (a) 1. if the giving of
13that notice is precluded by military necessity or is otherwise impossible or
14unreasonable. A determination of military necessity for purposes of this paragraph
15shall be made according to rules and regulations promulgated by the adjutant
16general or the federal secretary of defense and is not subject to judicial review.
AB572,7,1917
(c)
Length of absence limit. The periods of service in the uniformed services
18described in
38 USC 4312 (c) (1) to (4) and all of the following periods of active service
19are not included in calculating the 5-year period specified in par. (a) 2.:
AB572,7,2120
1. Any period of active service beyond that 5-year period that is required to
21complete an initial period of obligated active service.
AB572,7,2422
2. Any period of active service for which the person, through no fault of the
23person's own, was unable to obtain orders releasing the person from a period of active
24service before the expiration of the 5-year period.
AB572,8,5
13. Any period of active service that was performed to fulfill any additional
2training requirements determined and certified in writing by the federal secretary
3of the army, the federal secretary of the air force, or the adjutant general to be
4necessary for professional development or for completion of skill training or
5retraining.
AB572,8,126
4. Any period of active service that was performed by a person who was ordered
7to, or retained in, active service, other than for training, because of a state emergency
8declared by the governor, because of a war or national emergency declared by the
9president of the United States or Congress, because of insurrection, rebellion, riot,
10invasion, or resistance to the execution of the laws of this state or of the United
11States, or in support of an operational mission, a critical mission, or any other
12requirement of the uniformed services.