January 30, 2007, Introduced by Reps. Rick Jones, Pearce, Dean, Green, Gonzales, Sheltrown, LaJoy, Meekhof, Stahl, Mayes, Agema, Spade and Polidori and referred to the Committee on Military and Veterans Affairs and Homeland Security.
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 section 3 (MCL 32.273), as amended by 2002 PA 121.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3. (1) An employee who requests a 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 training duty as an officer
or enlisted member of the military or naval forces of this state or
of the United States in active state service or under title 10 or
title
32 of the United States code. Following
release from service,
training
duty, or rejection, the employee shall, if he or she makes
application
to his or her employer for reemployment within 15 If
the employee gives written notice to the employer within 45 days
following
release from service, release from duty, or rejection, be
reemployed
in a position of employment 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.
(c) Following service of 91 or more days, a position described
under subdivision (a) or (b) or in any other position of lesser
status or pay 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 a
cumulative
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 any
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.
(c)
Any service performed as required pursuant to 10 U.S.C.
USC
10147, under 32 U.S.C. 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 U.S.C. USC 688, 12301(a),
12301(g),
12302, 12304, or 12305, or under 14 U.S.C. 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, or the governor.
(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 U.S.C. 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 under 10 U.S.C. USC
331 to 335 or under 10
U.S.C.
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 with a dishonorable or bad conduct discharge.
(b) A separation of the person from the uniformed service or
national guard under other than honorable conditions, as
characterized pursuant to regulations prescribed by the appropriate
service secretary.
(c)
A dismissal of the person under 10 U.S.C. USC 1161(a).
(d)
A dropping from the rolls pursuant to 10 U.S.C. USC
1161(b).
(6) An employee who meets the requirements of this section and
is denied reemployment after giving the employer written notice 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) (6)
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. Active service includes continuing service
of an active member of the 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
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.
(c) "Service" means active service, active state service, or
in the service of the United States.
(d)
"Service secretary" means the secretary of the army,
secretary
of the navy, or secretary of the air force concerned as
defined
in 10 U.S.C. 101(9) USC
101(a)(9).
(e) "Uniformed service" means the armed forces, the reserve
component, the national guard in active service or active state
service, the commissioned corps of the public health service, and
any other category of persons designated by the president or
governor in time of war or national emergency.