STATE OF NEW YORK ________________________________________________________________________ 3710 2023-2024 Regular Sessions IN ASSEMBLY February 7, 2023 ___________ Introduced by M. of A. RAJKUMAR, STERN -- read once and referred to the Committee on Governmental Operations AN ACT to amend the military law, in relation to employment protections during the performance of state active duty by members of the national guard The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 1 of section 301 of the military law, as 2 amended by chapter 574 of the laws of 1959, is amended to read as 3 follows: 4 1. The term "military service" means duty by a person, male or female, 5 in the active military service of the United States as defined in 6 section one of this chapter [and]; active duty in the military service 7 of the state pursuant to an order of the governor issued pursuant to 8 section six or seven of this chapter; and state active duty by members 9 of the national guard who are activated pursuant to a call of the gover- 10 nor of this state or of any other state as provided for by law. 11 § 2. Section 317 of the military law, as added by chapter 728 of the 12 laws of 1951, subdivision 1 as amended by chapter 136 of the laws of 13 1952, subdivisions 2, 2-a and 3 as amended by chapter 312 of the laws of 14 1993, and subdivision 4 as amended by chapter 509 of the laws of 1956, 15 is amended to read as follows: 16 § 317. Reemployment in private industry. 1. In the case of any person 17 who, in order to perform military service, has left or leaves a posi- 18 tion, other than a temporary position, in the employ of any employer, 19 and who 20 (a) receives a certificate of completion of military service duly 21 executed by an officer of the applicable force of the armed forces of 22 the United States or by an officer of the applicable force of the organ- 23 ized militia of this state or of any other state as provided for by law; 24 (b) is still qualified to perform the duties of such position; and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07848-01-3
A. 3710 2 1 (c) makes application for reemployment within ninety days after he or 2 she is relieved from such service, if such position was in the employ of 3 a private employer, such employer shall restore such person to such 4 position, or to a position of like seniority, status and pay, unless the 5 employer's circumstances have so changed as to make it impossible or 6 unreasonable to do so. 7 2. The benefits, rights and privileges granted to persons in the mili- 8 tary service by this section shall be extended to and be applicable to 9 any person who, in order to participate in assemblies for drill or other 10 equivalent training, reserve duty training, instruction or duties, or 11 annual full-time training duty, active duty for training or other annual 12 training pursuant to any law of the United States or section forty-six 13 of this chapter or the regulations issued thereunder, or in order to 14 attend service schools conducted by the armed forces of the United 15 States, temporarily leaves or has left his or her position, other than a 16 temporary position, in the employ of any employer and who, being quali- 17 fied to perform the duties of such position, makes application for reem- 18 ployment within ten days after completion of such temporary period of 19 service. 20 2-a. The benefits, rights and privileges granted to persons in the 21 military service by this section shall be extended to and be applicable 22 to any person who, in order to perform initial full-time training duty 23 or initial active duty for training with or in an armed force of the 24 United States under the provisions of this chapter or the laws of the 25 United States or both, temporarily leaves or has left his or her posi- 26 tion, other than a temporary position, in the employ of any employer and 27 who, being qualified to perform the duties of such position, makes 28 application for re-employment within sixty days after completion of such 29 period of full-time training duty or active duty for training. 30 3. The benefits, rights and privileges granted to persons in the mili- 31 tary service by this section shall be extended to and be applicable to 32 any person who is or becomes a member of the organized militia of this 33 state or of any other state as provided for by law, or of a reserve 34 component of the armed forces of the United States and who, because of 35 such membership is discharged by his or her employer or whose employment 36 is suspended by his or her employer because of such membership and who, 37 being qualified to perform the duties of such position, makes applica- 38 tion for reemployment or termination of the period of his or her suspen- 39 sion within ten days after such discharge or suspension. These benefits, 40 rights and privileges are not applicable to persons participating in 41 routine reserve officer training corps training except when performing 42 advanced training duty as a member of a reserve component of the armed 43 forces. 44 4. Any person who is restored to a position in accordance with the 45 provisions of this section shall be considered as having been on 46 furlough or leave of absence during his or her period of military 47 service, temporary service under subdivision two or subdivision two-a 48 [hereof] of this section, or of discharge or suspension under subdivi- 49 sion three [hereof] of this section, shall be so restored without loss 50 of seniority, shall be entitled to participate in insurance or other 51 benefits offered by the employer pursuant to established rules and prac- 52 tices relating to employees on furlough or leave of absence in effect 53 with the employer at the time such person entered the military service 54 or commenced such temporary service or was so discharged or suspended, 55 and shall not be discharged from such position without cause, within one 56 year after such restoration.
A. 3710 3 1 5. In case any private employer fails or refuses to comply with the 2 provisions of this section, the supreme court of the state within the 3 county in which such private employer maintains a place of business, 4 shall have the power, upon the filing of a motion, petition or other 5 appropriate pleading, by the person entitled to the benefits of such 6 provisions, to specifically require such employer to comply with such 7 provisions, and may, as an incident thereto, compensate such person for 8 any loss of wages or benefits suffered by reason of such employer's 9 unlawful action. The court shall order a speedy hearing in any such 10 case, and shall advance it on the calendar. Any person claiming to be 11 entitled to the benefits of the provisions of this section may appear 12 and be represented by counsel, or, upon application to the attorney 13 general of the state, may request that the attorney general appear and 14 act on his or her behalf. If the attorney general is reasonably satis- 15 fied that the person so applying is entitled to such benefits, he or she 16 shall appear and act as attorney for such person in the amicable adjust- 17 ment of the claim, or in the filing of any motion, petition or other 18 appropriate pleading and the prosecution thereof. In the hearing and 19 determination of such applications under this section no fees or court 20 costs shall be assessed against a person so applying for such benefits. 21 § 3. This act shall take effect immediately.