HB 455

Under existing law, all officers and employees of the State of Alabama, or other agency or political subdivision of the State of Alabama, or officers or employees of any public or private business or industry who are active members of the Alabama National Guard, Naval Militia, the Alabama State Guard organized in lieu of the National Guard, the Civil Air Patrol, the National Disaster Medical System, or of any other reserve component of the uniformed services of the United States, are entitled to military leave of absence from their respective civil duties and occupations on all days that they are engaged in field or coast defense or other training or on other service ordered under the National Defense Act, the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, or of the federal laws governing the United States reserves, without loss of pay, time, efficiency rating, annual vacation, or sick leave

This bill would create a private right of action against violators of this existing law

This bill would prohibit discrimination against any member of the uniformed services for exercising his or her rights as provided by law

Relating to military leave of absence; to amend Section 31-2-13, Code of Alabama 1975, to create a private right of action against violators of the military leave of absence law; and to add Sections 31-2-13.1 and 31-2-13.2 to the Code of Alabama 1975, to prohibit discrimination against any member of the uniformed services for exercising his or her rights as provided by law.

Section 1

Section 31-2-13, Code of Alabama 1975, is amended to read as follows:

§31-2-13.

(a) Military leave of absence. All officers and employees of the State of Alabama, or of any county, municipality, or other agency or political subdivision thereof, or officers or employees of any public or private business or industry who are active members of 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, shall be entitled to military leave of absence from their respective civil duties and occupations on all days that they are engaged in field or coast defense or other training or on other service ordered under the National Defense Act, the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, or of the federal laws governing the United States reserves, without loss of pay, time, efficiency rating, annual vacation, or sick leave. Notwithstanding the foregoing, no person granted a leave of absence with pay shall be paid for more than 168 working hours per calendar year, and those persons shall be entitled, in addition thereto, to be paid for no more than 168 working hours at any one time while called by the Governor to duty in the active service of the state. This section shall apply to all schools and institutions of learning supported by state funds.

(b) Credit for active federal service. Service in the National Guard or Naval Militia of Alabama, when called, drafted, or ordered into the service of the United States, shall be considered as equivalent service in the Alabama National Guard or Naval Militia for any and all state purposes regarding privileges, honors, pay, allowances, and exemptions provided by law for members of the National Guard and Naval Militia of Alabama.

(c) A person who is a member of 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, performance of service, or obligation.

(d) 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 chapter.

(2) Testified or otherwise made a statement in or in connection with any proceeding under this chapter.

(3) Assisted or otherwise participated in an investigation under this chapter.

(4) Exercised a right provided for in this chapter.

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

(1) Under subsection (c), 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 (d), if the person's action to enforce a protection afforded any person under this chapter, testimony or making of a statement in or in connection with any proceeding under this chapter, assistance or other participation in an investigation under this chapter, or exercise of a right provided for in this chapter, 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.

(f) For purposes of this chapter, "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 2

Sections 31-2-13.1 and 31-2-13.2 are added to the Code of Alabama 1975, to read as follows: § 31-2-13.1. (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 chapter 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. (3) Except as provided in subsection (f), the person reports to, or submits an application for reemployment to, the employer in accordance with subsection (e). (b) No notice is required under subdivision (1) of subsection (a) 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) Subsection (a) applies to a person who is absent from a position of employment by reason of service in the uniformed services if the person's cumulative period of service in the uniformed services, with respect to the employer relationship for which a person seeks reemployment, does not exceed five years, except that the period of service shall not include any of the following: (1) Service that is required, beyond five years, to complete an initial period of obligated service. (2) 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. (3) 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. (d)(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. In the case of a person entitled to reemployment under this section the employment would impose an undue hardship on the employer. c. 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, undue hardship, or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period. (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. (f) 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 (1) of subsection (e) or submit an application for reemployment with the employer, in the case of a person described in subdivision (2) or (3) of subsection (e). Except as provided in subdivision (2) of subsection (e), 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 (1) of subsection (e) impossible or unreasonable. (g) A person who fails to report or apply for employment or reemployment within the appropriate period specified in subsection (e) 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. (h) In any determination of a person's entitlement to protection under this chapter, 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 chapter if the service does not exceed the limitations set forth in subsection (c) and the notice requirements established in subdivision (1) of subsection (a) and the notification requirements established in subsection (e) are met. § 31-2-13.2. (a) In any action under this chapter, the court may award relief as follows: (1) The court may require the employer to comply with this chapter. (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 this chapter. (3) The court may require the employer to pay the person an amount equal to the amount referred to in subdivision (2) of this subsection as liquidated damages, if the court determines that the employer's failure to comply with this chapter was willful. (b) No fees or court costs may be charged or taxed against any person claiming rights under this chapter. (c) In any action or proceeding to enforce this chapter by a person under subdivision (2) of subsection (a) who obtained private counsel for the action or proceeding, the court may award any person under subdivision (2) of subsection (a) who prevails in the action or proceeding reasonable attorney fees, expert witness fees, and other litigation expenses.

Section 3

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.