HB-4796, As Passed House, October 20, 2015

HOUSE BILL No. 4796

August 18, 2015, Introduced by Reps. Franz, Goike, Graves, Price, Yonker, Dianda, Hughes, Pettalia, Barrett and Glenn and referred to the Committee on Military and Veterans Affairs.

A bill to amend 1955 PA 133, entitled

"An act to provide for the granting of military leaves and

providing re-employment protection for officers and enlisted men of

the military or naval forces of the state or of the United States,"

by amending sections 2 and 3 (MCL 32.272 and 32.273), section 3 as

amended by 2008 PA 106.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 2. No An employer or an officer or agent of any

corporation, company, or firm, or other person shall not discharge

any person from employment because of being or performing his or

her duty as an officer or enlisted ~~man~~ member of the military or

naval forces of this state or any other state, or hinder or prevent

him or her from performing any military service or from attending

any military encampment or place of drill or instruction , he or

she may be called upon to perform or attend by proper authority, or

dissuade any person from enlistment or accepting a commission in

the ~~national guard~~ National Guard or naval militia by threat of

injury to him or her in respect to his or her employment, trade, or

business ~~in case of his~~ upon enlistment or acceptance of a

commission.

Sec. 3. (1) An employee who gives advance notice for a period

of leave from his or her employment shall not be denied a leave of

absence by his or her employer for the purpose of being inducted

into or entering into active service, active state service, or the

service of the United States, for the purpose of determining his or

her physical fitness to enter the service, or for performing

service as an officer or enlisted member of the military or naval

forces of this state, any other state, or of the United States in

active state service or under title 10 or title 32 of the United

States ~~code.~~ Code. If the employee reports to work or applies to

the employer within 45 days or, if the service was for more than

180 days, within 90 days following release from service, release

from duty, or rejection, the employer shall reemploy the employee

in the following order of priority:

(a) Following service of 1 to 90 days, in the position of

employment in which the person would have been employed if the

continuous employment of the person with the employer had not been

interrupted by service, the duties of which the person is qualified

to perform.

(b) Following service of 1 to 90 days, in the position of

employment in which the person was employed on the date of the

commencement of service, only if the person is not qualified to

perform the duties of the position referred to in subdivision (a)

and after reasonable efforts by the employer to qualify the person

have been made.

described under subdivision (a) or (b), or in a position that is

the nearest approximation in status and pay to a position described

in subdivision (a) or (b) that the person is qualified to perform ,

only if the person is not qualified and cannot become qualified

with reasonable efforts by the employer to be employed as described

in subdivision (b).

(2) A person who is reemployed under this section is entitled

to the seniority and other rights and benefits that are determined

by seniority that the person had on the date of the commencement of

service plus the additional seniority and rights and benefits that

the person would have attained if the person had been continually

employed.

(3) In addition to the seniority, rights, and benefits under

subsection (2), a person who is reemployed under this section is

entitled to rights and benefits, not determined by seniority, that

are generally provided by the employer to employees who have

similar seniority, status, and pay who are on furlough or leave of

absence under a contract, agreement, policy, practice, or plan in

effect at the commencement of service or established while the

person performs service.

(4) The employee is not entitled to reemployment under this

section if the employee who is absent by reason of active service,

active state service, or the service of the United States has an

uninterrupted period of service in the uniformed services, with

respect to the employer relationship for which a person seeks

reemployment, that exceeds 5 years. ~~, except that for~~ For purposes

of this subsection, a period of service shall not include any of

the following:

(a) Any service that is required, beyond 5 years, to complete

an initial period of obligated service.

(b) Any service during which the person was unable to obtain

orders releasing him or her from a period of service in the

uniformed services before the expiration of the 5-year period and

the inability was through no fault of the person.

10147, under 32 USC 502(a) or 503, or to fulfill additional

training requirements determined and certified in writing by the

appropriate service secretary to be necessary for professional

development or for completion of skill training or retraining.

(d) Any service performed by a member in active service,

active state service, or the service of the United States if any of

the following occur:

(i) The member is ordered to or retained on active duty,

active service, or active state service under 10 USC 688, 12301(a),

12301(g), 12302, 12304, or 12305, or under 14 USC 331, 332, 359,

360, 367, or 712.

(ii) The member is ordered to or retained on active duty,

active service, or active state service, other than for training,

under any provision of law because of a war or national emergency

declared by the president, the ~~congress,~~ Congress, or the governor

of this state or any other state.

(iii) The member is ordered to active duty, other than for

training, in support, as determined by the appropriate service

secretary, of an operational mission for which personnel have been

ordered to active duty under 10 USC 12304.

(iv) The member is ordered to active duty in support, as

determined by the appropriate service secretary, of a critical

mission or requirement of the uniformed services.

(v) The member is called into federal service as a member of

the ~~national guard~~ National Guard under 10 USC 331 to 335 or under

10 USC 12406.

(5) An employee is not entitled to the benefits under this

section if the service of the employee in any of the uniformed

services is terminated under any of the following circumstances:

(a) A separation of the person from the uniformed service or

~~national guard~~ National Guard with a dishonorable or bad conduct

discharge.

(b) A separation of the person from the uniformed service or

~~national guard~~ National Guard under other than honorable

conditions, as characterized pursuant to regulations prescribed by

the appropriate service secretary.

(d) A dropping from the rolls pursuant to 10 USC 1161(b).

(6) An employee who meets the requirements of this section and

is denied reemployment as required under this section after

reporting to work or applying to the employer may bring an action

against the employer in the circuit court for the employee's county

of residence and shall be awarded reinstatement and reasonable

attorney fees.

(7) As used in this section:

(a) "Active service" means service, including active state

service or special duty required by law, regulation, or pursuant to

order of the governor of this state or any other state. Active

service includes continuing service of an active member of the

~~national guard~~ National Guard and the defense force in fulfilling

that active member's commission, appointment, or enlistment.

(b) "Active state service", as applied to the ~~national guard~~

National Guard and the defense force, means military service in

support of civil authorities, at the request of local authorities,

including, but not limited to, support in the enforcement of laws

prohibiting the importation, sale, delivery, possession, or use of

a controlled substance, if ordered by the governor or as otherwise

provided in this act. As used in this subdivision, "controlled

substance" means that term as defined in section 7104 of the public

health code, 1978 PA 368, MCL 333.7104.

in the service of the United States.

(d) "Service secretary" means the secretary concerned as

defined in 10 USC 101(a)(9).

(e) "Uniformed service" means the armed forces, the reserve

component, the ~~national guard~~ National Guard in active service or

active state service, the commissioned corps of the public health