S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1428--A

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             January 7, 2011
                               ___________

Introduced  by  M.  of A. CASTELLI, BURLING, N. RIVERA, STEVENSON, KATZ,
  McDONOUGH, McLAUGHLIN -- Multi-Sponsored  by  --  M.  of  A.  CALHOUN,
  CROUCH,  GIGLIO,  HAWLEY, McKEVITT, J. MILLER, MURRAY, REILICH -- read
  once and referred  to  the  Committee  on  Governmental  Employees  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the military law and the civil service law, in  relation
  to abolition of positions occupied by public employees absent on mili-
  tary duty

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 11 of section 243 of the military law, as added
by chapter 420 of the laws of 1953, is amended to read as follows:
  11.  [Preferred]  ELIMINATION  OF  POSITIONS  AND   PREFERRED   lists.
NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW TO THE CONTRARY, NO PUBLIC
EMPLOYER SHALL ABOLISH A POSITION OCCUPIED BY A PUBLIC EMPLOYEE  ENGAGED
IN THE PERFORMANCE OF MILITARY DUTY, EXCEPT AS HEREINAFTER PROVIDED:
  (A)  IF  A  PUBLIC EMPLOYER FIRST ABOLISHES ALL SIMILAR POSITIONS, THE
EMPLOYER MAY ABOLISH A POSITION OCCUPIED BY A PUBLIC EMPLOYEE ENGAGED IN
THE PERFORMANCE OF MILITARY DUTY. IF TWO OR MORE PUBLIC EMPLOYEES IN ANY
SIMILAR POSITION ARE ENGAGED IN THE PERFORMANCE OF  MILITARY  DUTY,  AND
THE  FOREGOING  ACTION  WOULD  RESULT IN THE ELIMINATION OF AT LEAST ONE
POSITION OCCUPIED BY A PUBLIC EMPLOYEE, THE ELIMINATION OF THE  POSITION
OR  POSITIONS HELD BY THE PUBLIC EMPLOYEES ENGAGED IN THE PERFORMANCE OF
MILITARY DUTY SHALL BE MADE IN ORDER OF SENIORITY, COMMENCING  WITH  THE
LEAST SENIOR PUBLIC EMPLOYEE.
  (B)  If  the position occupied by a public employee is abolished prior
to the termination of his military duty IN THE MANNER SET FORTH IN PARA-
GRAPH (A) OF THIS SUBDIVISION, his OR HER name shall be placed forthwith
upon a preferred list, as  herein  provided.  Public  employees  in  the
competitive  class  of  the  civil service shall have their names placed

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05550-03-1
              

A. 1428--A                          2

upon a preferred eligible list, pursuant to the  provisions  of  section
[thirty-one]  EIGHTY-ONE  of  the civil service law and public employees
subject to section twenty-five hundred [thirty-five] EIGHTY-FIVE of  the
education  law  shall  have  their names placed upon a preferred list as
provided in such [section] SECTIONS.
  (C) FOR PURPOSES OF THIS SUBDIVISION "SIMILAR POSITION" SHALL  MEAN  A
POSITION  IN  THE  AREA  FOR  THE PERFORMANCE OF DUTIES SIMILAR TO THOSE
PERFORMED IN THE POSITION HELD BY THE PUBLIC  EMPLOYEE  ENGAGED  IN  THE
PERFORMANCE OF MILITARY DUTY.
  S  2.  Subdivision  3  of section 243 of the military law, as added by
chapter 420 of the laws of 1953, is amended to read as follows:
  3. Substitutes. A position held by a public employee who is absent  on
military duty shall[, so far as practicable,] be continued in existence,
AS  PROVIDED  IN SUBDIVISION ELEVEN OF THIS SECTION, but shall be deemed
temporarily vacant and shall be filled only when the public interest  so
requires.  Any appointment to fill such vacancy shall be designated as a
substitute appointment and the request for  certification,  the  certif-
ication  and  the  indicia  of appointment shall show that the person is
being appointed as  a  substitute.  Any  public  employee,  who  accepts
appointment as a substitute shall be granted a leave of absence from his
former position until the termination of such appointment and the tempo-
rary  vacancy  resulting  from  such leave of absence shall be filled in
like manner only when the public interest so requires and  any  appoint-
ment  to such position shall also be designated as a substitute appoint-
ment and the request for certification, the certification and the  indi-
cia of appointment shall show that the person is being appointed to such
position as a substitute. Every such substitute appointment shall be for
a  period not exceeding the leave of absence of the former incumbent and
shall be made in accordance with the provisions  of  law  applicable  to
such  position,  provided, however, that such substitute appointment may
be continued for a period in excess of  one  year,  notwithstanding  the
provisions  of  section  [fifteen]  SIXTY-FOUR of the civil service law.
Such substitute employee shall acquire no right to permanent appointment
or tenure by virtue of his service as a substitute and such service  may
be terminated at any time in the discretion of the appointing officer or
body.  His  rights, if any, with respect to appointment or tenure, shall
not, however, be impaired in any way by his acceptance of an appointment
as a substitute and his name shall remain on any eligible or other  list
and  he shall be certified as eligible for any other appointment author-
ized by law during the existence of such list.
  The appointment of a substitute shall terminate (a) upon the return of
the former incumbent to his position or (b) upon the death or  permanent
total  disability  of  the  former  incumbent or (c) upon failure of the
former incumbent to return to said position within ninety days after the
termination of  his  military  duty  or  (d)  upon  the  appointment  or
promotion  of  the former incumbent to another position as authorized by
subdivision six of this section, and, upon the happening of any of  such
events, said position may then be filled in the manner provided by law.
  S  3. Subdivision 7 of section 85 of the civil service law, as amended
by chapter 532 of the laws of 1976, is amended to read as follows:
  7. Preference in retention upon the abolition  of  positions.  In  the
event  of  the  abolition  or  elimination  of any position in the civil
service for which eligible lists are established  or  any  position  the
incumbent  of  which is encompassed by section eighty-a of this chapter,
any suspension, demotion or displacement shall be made  in  the  inverse
order  of the date of original appointment in the service subject to the

A. 1428--A                          3

following conditions: (1) blind  employees  shall  be  granted  absolute
preference  in  retention; (2) the date of such original appointment for
disabled veterans shall be deemed to be sixty months  earlier  than  the
actual date, determined in accordance with section thirty of the general
construction law; (3) the date of such original appointment for non-dis-
abled  veterans  shall  be  deemed  to be thirty months earlier than the
actual date, determined in accordance with section thirty of the general
construction law; (4) no permanent competitive class employee subject to
the jurisdiction of the civil service commission of the city of New York
who receives an injury in the line of duty, as  defined  in  this  para-
graph,  which  requires  immediate  hospitalization,  and  which  is not
compensable through workmen's compensation may be suspended, demoted  or
displaced pursuant to section eighty of this chapter within three months
of  the  date  of  his  confinement,  provided  that medical authorities
approved by such commission shall certify that the employee is not  able
to  perform  the  duties  of  his  position; provided further, that such
three-month period may be extended by  such  commission  for  additional
periods  not  to  exceed one year each upon the certification of medical
authorities selected by such commission  that  the  employee  is,  as  a
result  of his injury, still not able to perform the duties of his posi-
tion. An injury in the line of duty, as used herein, shall be  construed
to  mean  an  injury  which is incurred as a direct result of the lawful
performance of the duties of the position.  In  determining  whether  an
injury  was  received in the line of duty, such commission shall require
the head of the agency by which the employee is employed to certify that
the injury was received as a direct result of the lawful performance  of
the  employee's  duties;  [and]  (5)  the  spouse  of a veteran with one
hundred percent service connected disability shall be deemed to be sixty
months earlier than the  actual  date,  determined  in  accordance  with
section  thirty of the general construction law, provided, the spouse is
domiciled with the veteran-spouse and is the head of the household;  AND
(6) EMPLOYEES ENGAGED IN THE PERFORMANCE OF MILITARY DUTY AT THE TIME OF
ABOLITION  OR  ELIMINATION OF THEIR POSITION SHALL BE GRANTED PREFERENCE
IN RETENTION, IN THE  MANNER  PROVIDED  FOR  IN  SUBDIVISION  ELEVEN  OF
SECTION TWO HUNDRED FORTY-THREE OF THE MILITARY LAW.  This section shall
not be construed as conferring any additional benefit upon such employee
other  than a preference in retention. Such employee shall be subject to
transfer upon the abolition of his function within his agency or depart-
ment.
  S 4. This act shall take effect immediately.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1428--B
                                                        Cal. No. 177

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             January 7, 2011
                               ___________

Introduced  by  M.  of A. CASTELLI, BURLING, N. RIVERA, STEVENSON, KATZ,
  McDONOUGH, McLAUGHLIN, WEPRIN, ABBATE, RAMOS, MALLIOTAKIS,  DenDEKKER,
  ORTIZ,  SCHIMEL, M. MILLER, RUSSELL, NOLAN -- Multi-Sponsored by -- M.
  of A.  CALHOUN, CROUCH, GIGLIO, HAWLEY, McKEVITT,  J. MILLER,  MURRAY,
  REILICH  --  read  once  and referred to the Committee on Governmental
  Employees -- committee discharged, bill amended, ordered reprinted  as
  amended  and recommitted to said committee -- reported from committee,
  advanced to a third reading, amended and ordered reprinted,  retaining
  its place on the order of third reading

AN  ACT to amend the military law and the civil service law, in relation
  to abolition of positions occupied by public employees absent on mili-
  tary duty

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 11 of section 243 of the military law, as added
by  chapter  420  of  the laws of 1953, is amended and a new subdivision
10-b is added to read as follows:
  10-B. IF A PUBLIC  EMPLOYER  CONSOLIDATES,  ABOLISHES,  DISPLACES,  OR
DEMOTES  A  POSITION,  IN  ACCORDANCE  WITH  SECTION EIGHTY, EIGHTY-A OR
EIGHTY-FIVE OF THE CIVIL SERVICE LAW, WHICH  IS  OCCUPIED  BY  A  PUBLIC
EMPLOYEE  CURRENTLY  ON  ACTIVE DUTY WITH THE ARMED FORCES OF THE UNITED
STATES, AS PURSUANT TO TITLE TEN, FOURTEEN OR THIRTY-TWO OF  THE  UNITED
STATES  CODE,  SUCH  EMPLOYER  SHALL COMPLY WITH SUBDIVISIONS ELEVEN AND
TWELVE OF THIS SECTION AND, UPON THE TERMINATION OF THE  PUBLIC  EMPLOY-
EE'S ACTIVE DUTY, AS DEFINED IN TITLE TEN, FOURTEEN OR THIRTY-TWO OF THE
UNITED  STATES  CODE, SUCH PUBLIC EMPLOYER SHALL PROVIDE FULL RE-EMPLOY-
MENT RIGHTS WARRANTED TO  SUCH  EMPLOYEE  UNDER  THE  FEDERAL  UNIFORMED
SERVICES  EMPLOYMENT  AND  REEMPLOYMENT  RIGHTS  ACT  OF 1994, PROVIDED,
HOWEVER, THE RIGHT OF RE-EMPLOYMENT  UNDER  THIS  SUBDIVISION  DOES  NOT
ENTITLE SUCH EMPLOYEE TO DISPLACEMENT RIGHTS OVER ANY PERSON WITH GREAT-
ER  SENIORITY.  SUCH  PUBLIC  EMPLOYER SHALL NOT ABOLISH ANY POSITION OR
POSITIONS SOLELY BASED UPON THE FACT THAT THE POSITION OR POSITIONS  ARE
CURRENTLY  FILLED  BY  AN  INDIVIDUAL OR INDIVIDUALS ENGAGED IN MILITARY
DUTY.
              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05550-07-1

A. 1428--B                          2

  11. Preferred lists. If the position occupied by a public employee  is
abolished  prior  to the termination of his military duty his name shall
be placed forthwith upon a preferred list, as  herein  provided.  Public
employees in the competitive class of the civil service shall have their
names  placed upon a preferred eligible list, pursuant to the provisions
of section [thirty-one] EIGHTY-ONE of the civil service law  and  public
employees  subject to [section twenty-five hundred thirty-five] SECTIONS
TWENTY-FIVE HUNDRED TEN, TWENTY-FIVE HUNDRED EIGHTY-FIVE AND TWENTY-FIVE
HUNDRED EIGHTY-EIGHT of the education law shall have their names  placed
upon a preferred list as provided in such section.
  S  2. Subdivision 1 of section 81 of the civil service law, as amended
by chapter 283 of the laws of 1972, is amended to read as follows:
  1.  Establishment of preferred lists; general provisions. The head  of
any  department, office or institution in which an employee is suspended
or demoted in accordance with the  provisions  of  sections  eighty  and
eighty-a  of  this  [chapter]  TITLE  shall,  upon  such  suspension  or
demotion, furnish the state  civil  service  department  or  appropriate
municipal  commission, as the case may be, a statement showing his name,
title or position, date of appointment, and the date of and  reason  for
suspension  or  demotion.  It  shall  be  the duty of such civil service
department or commission, as the case may be,  forthwith  to  place  the
name  of  such  employee upon a preferred list, together with others who
may have been suspended or demoted from the same or similar positions in
the same jurisdictional class, and to certify such list, as  hereinafter
provided, for filling vacancies in the same jurisdictional class; first,
in  the  same  or  similar  position; second, in any position in a lower
grade in line of promotion; and third, in any comparable position.  Such
preferred  list  shall  be  certified  for filling a vacancy in any such
position before certification is made from any other list,  including  a
promotion  eligible  list,  notwithstanding  the  fact  that none of the
persons on such preferred list was suspended  from  or  demoted  in  the
department or suspension and demotion unit in which such vacancy exists.
No  other name shall be certified from any other list for any such posi-
tion until such preferred list is exhausted. The eligibility  for  rein-
statement  of  a  person  whose  name appears on any such preferred list
shall not continue for a period longer than four years from the date  of
separation  or  demotion.    AN  EMPLOYEE  WHOSE  NAME WAS PLACED ON THE
PREFERRED LIST AND AT THE TIME OF SUCH PLACEMENT WAS ON ACTIVE DUTY WITH
THE ARMED FORCES OF THE UNITED STATES, AS PURSUANT TO TITLE  TEN,  FOUR-
TEEN  OR THIRTY-TWO OF THE UNITED STATES CODE, SHALL NOT BE ELIGIBLE FOR
EMPLOYMENT REINSTATEMENT FOR A PERIOD LONGER THAN FOUR YEARS  AFTER  THE
DATE OF TERMINATION OF MILITARY DUTY.
  S  3.  The  civil service law is amended by adding a new section 88 to
read as follows:
  S 88. PROHIBITION  AGAINST  DISCRIMINATION  AGAINST  PUBLIC  EMPLOYEES
SERVING  IN THE ARMED FORCES. NO PUBLIC EMPLOYER, AS DEFINED IN SUBDIVI-
SION SIX OF SECTION TWO HUNDRED ONE OF THIS CHAPTER, SHALL DENY  EMPLOY-
MENT,  RE-EMPLOYMENT  OR  ANY  BENEFIT  OF  EMPLOYMENT  TO ANY PERSON OR
EMPLOYEE BASED ON PROSPECTIVE, CURRENT OR PAST  ENLISTMENT,  APPOINTMENT
OR COMMISSION WITH THE ARMED FORCES OF THE UNITED STATES. SUCH PERSON OR
EMPLOYEE  SHALL  BE  AFFORDED  FULL ENFORCEMENT RIGHTS UNDER THE LAWS OF
THIS STATE AND OF THE UNITED STATES,  INCLUDING  THE  FEDERAL  UNIFORMED
SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994.
  S 4. This act shall take effect immediately.