AB572: Bill Text

LRB-3956/2

GMM/PJK/RAC:cs:ch

2001 - 2002 LEGISLATURE

2001 Assembly BILL 572

October 16, 2001 - Introduced by Veterans and Military Affairs. Referred to Committee on Veterans and Military Affairs.

AB572,1,4 An Act to create 21.80, 106.54 (7), 111.91 (2) (gm), 230.32 (7) and 230.45 (1) (m) of the statutes; relating to: reemployment rights after national guard or state defense force service, providing an exemption from emergency rule-making procedures, 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 Section 1. 21.80 of the statutes is created to read:

AB572,5,3 21.80 Reemployment rights after national guard or state defense force service. (1) Definitions. In this section:

AB572,5,7 (a) "Active service" means active service in the national guard or the state defense force under an order of the governor issued under this chapter or active service in the national guard under 32 USC 502 (f) that is not considered to be service in the uniformed services.

AB572,5,14 (b) "Employer" means a person engaging in any activity, enterprise, or business in this state employing one or more persons on a permanent basis. "Employer" includes the state and any office, department, independent agency, authority, institution, association, society, or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts. "Employer" also includes a successor-in-interest of a person employing an individual who has provided notice to that person under sub. (3) (a).

AB572,5,15 (c) "Health benefit plan" has the meaning given in s. 632.745 (11).

AB572,5,17 (d) "Qualified" means having the ability to perform the essential tasks of an employment position.

AB572,5,20 (e) "Reasonable efforts" means, with respect to an action required by an employer under sub. (4) (a) 1., 2., 3., or 4., an action that does not place an undue hardship on the employer.

AB572,6,2 (f) "Service in the uniformed services" has the meaning given in 38 USC 4303 (13).

AB572,6,5 (g) "Undue hardship" means, with respect to an action required by an employer under sub. (4) (a) 1., 2., 3., or 4., significant difficulty or expense, when considered in light of all of the following:

AB572,6,6 1. The nature and cost of the action.

AB572,6,10 2. The overall financial resources of the facility involved in providing the action, the number of persons employed at the facility, the effect of providing the action on the resources and finances of the facility, and any other impact of the action on the operation of the facility.

AB572,6,13 3. The overall financial resources of the employer, the number of persons employed by the employer, and the number, type, and location of the employer's facilities.

AB572,6,17 4. The type of operation of the employer, including the composition, structure, and functions of the employer's workforce, the geographic separateness from the employer of the facility involved in providing the action, and the administrative and financial relationship of the facility to the employer.

AB572,6,21 (2) More generous rights permitted. Nothing in this section prohibits an employer from providing employees who are called into active service with reemployment rights and benefits that are more generous to the employee than the rights and benefits provided under this section.

AB572,6,24 (3) Reemployment rights. (a) Prerequisites. Subject to par. (d), any person who is absent from a position of employment because of active service is entitled to the reemployment rights and benefits specified in this section if all of the following apply:

AB572,7,3 1. Except as provided in par. (b), the person or an appropriate officer in the national guard or the state defense force has given advanced notice of the active service to the person's employer.

AB572,7,7 2. Except as provided in par. (c), the cumulative length of the absence from the position of employment and of all previous absences from a position of employment with the employer by reason of active service or service in the uniformed services does not exceed 5 years.

AB572,7,9 3. Except as provided in par. (f), the person reports to the employer or submits an application for reemployment to the employer as required under par. (e).

AB572,7,11 4. The person's service in the national guard or the state defense force has not been terminated under other than honorable conditions.

AB572,7,16 (b) Notice not required. No notice is required under par. (a) 1. if the giving of that notice is precluded by military necessity or is otherwise impossible or unreasonable. A determination of military necessity for purposes of this paragraph shall be made according to rules and regulations promulgated by the adjutant general or the federal secretary of defense and is not subject to judicial review.

AB572,7,19 (c) Length of absence limit. The periods of service in the uniformed services described in 38 USC 4312 (c) (1) to (4) and all of the following periods of active service are not included in calculating the 5-year period specified in par. (a) 2.:

AB572,7,21 1. Any period of active service beyond that 5-year period that is required to complete an initial period of obligated active service.

AB572,7,24 2. Any period of active service for which the person, through no fault of the person's own, was unable to obtain orders releasing the person from a period of active service before the expiration of the 5-year period.

AB572,8,5 3. Any period of active service that was performed to fulfill any additional training requirements determined and certified in writing by the federal secretary of the army, the federal secretary of the air force, or the adjutant general to be necessary for professional development or for completion of skill training or retraining.

AB572,8,12 4. Any period of active service that was performed by a person who was ordered to, or retained in, active service, other than for training, because of a state emergency declared by the governor, because of a war or national emergency declared by the president of the United States or Congress, because of insurrection, rebellion, riot, invasion, or resistance to the execution of the laws of this state or of the United States, or in support of an operational mission, a critical mission, or any other requirement of the uniformed services.

AB572,8,14 (d) Exceptions. An employer is not required to reemploy a person under this section if the employer shows that any of the following apply:

AB572,8,16 1. The employer's circumstances have so changed as to make reemployment of the person impossible or unreasonable.

AB572,8,19 2. The position of employment that the person left to perform active service was for a brief, nonrecurrent period and there was no reasonable expectation that the position of employment would continue indefinitely or for a significant period of time.

AB572,8,22 3. In the case of a person who is entitled to reemployment under sub. (4) (a) 3. or 4., the accommodations, training, or effort required under sub. (4) (a) 3. or 4. would pose an undue hardship on the employer.

AB572,9,15 (e) Return procedures. 1. Subject to subds. 4. and 5., if a person who has been absent from a position of employment because of active service that lasted for less than 31 days, who has been absent from a position of employment for any period of time for the purpose of an examination to determine the person's fitness to perform active service, or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the person's employer of the person's intent to return to the position of employment by reporting to the employer by no later than the beginning of the first full regularly-scheduled work period on the first full calendar day following the completion of the active service, examination, or period of hospitalization or convalescence, a period of time that allows for the safe transportation of the person from the place of active service, examination, hospitalization, or convalescence to the person's residence, and a rest period of 8 hours following that transportation period or, if through no fault of the person's own reporting to the employer within that time is impossible or unreasonable, by reporting to the employer as soon as possible after that 8-hour rest period.

AB572,9,25 2. Subject to subds. 4. and 5., if a person who has been absent from a position of employment because of active service that lasted for more than 30 days, but less than 181 days, or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the person's employer of the person's intent to return to the position of employment by submitting to the employer an application for reemployment by no later than 14 days after the completion of the active service, hospitalization, or convalescence or, if through no fault of the person's own submitting the application within that time is impossible or unreasonable, by submitting to the employer an application for reemployment by no later than the first full calendar day on which submission of the application becomes possible.

AB572,10,16 3. Subject to subds. 4. and 5., if a person who has been absent from a position of employment because of active service that lasted for more than 180 days or who has been absent from a position of employment because the person was hospitalized for or was convalescing from an illness or injury that was incurred in or aggravated during the performance of that active service wishes to receive the reemployment rights and benefits specified in this section, the person must notify the person's employer of the person's intent to return to the position of employment by submitting to the employer an application for reemployment by no later than 90 days after the completion of the active service, hospitalization, or convalescence or, if through no fault of the person's own submitting the application within that time is impossible or unreasonable, by submitting to the employer an application for reemployment by no later than the first full calendar day on which submission of the application becomes possible.