S T A T E   O F   N E W   Y O R K
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                                   5441
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               March 6, 2023
                                ___________
 
 Introduced  by Sen. SCARCELLA-SPANTON -- read twice and ordered printed,
   and when printed to be committed to the Committee on  Veterans,  Home-
   land Security and Military Affairs
 
 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:
 
   Section  1.  Subdivision  1  of  section  301  of the military law, as
 amended by chapter 574 of the laws  of  1959,  is  amended  to  read  as
 follows:
   1. The term "military service" means duty by a person, male or female,
 in  the  active  military  service  of  the  United States as defined in
 section one of this chapter [and]; active duty in the  military  service
 of  the  state  pursuant  to an order of the governor issued pursuant to
 section six or seven of this chapter; AND STATE ACTIVE DUTY  BY  MEMBERS
 OF THE NATIONAL GUARD WHO ARE ACTIVATED PURSUANT TO A CALL OF THE GOVER-
 NOR OF THIS STATE OR OF ANY OTHER STATE AS PROVIDED FOR BY LAW.
   §  2.  Section 317 of the military law, as added by chapter 728 of the
 laws of 1951, subdivision 1 as amended by chapter 136  of  the  laws  of
 1952, subdivisions 2, 2-a and 3 as amended by chapter 312 of the laws of
 1993,  and  subdivision 4 as amended by chapter 509 of the laws of 1956,
 is amended to read as follows:
   § 317. Reemployment in private industry.  1. In the case of any person
 who, in order to perform military service, has left or  leaves  a  posi-
 tion,  other  than  a temporary position, in the employ of any employer,
 and who
   (a) receives a certificate of  completion  of  military  service  duly
 executed  by  an  officer of the applicable force of the armed forces of
 the United States or by an officer of the applicable force of the organ-
 ized militia OF THIS STATE OR OF ANY OTHER STATE AS PROVIDED FOR BY LAW;

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07848-01-3
              

 S. 5441                             2
 
   (b) is still qualified to perform the duties of such position; and
   (c)  makes application for reemployment within ninety days after he OR
 SHE is relieved from such service, if such position was in the employ of
 a private employer, such employer shall  restore  such  person  to  such
 position, or to a position of like seniority, status and pay, unless the
 employer's  circumstances  have  so  changed as to make it impossible or
 unreasonable to do so.
   2. The benefits, rights and privileges granted to persons in the mili-
 tary service by this section shall be extended to and be  applicable  to
 any person who, in order to participate in assemblies for drill or other
 equivalent  training,  reserve  duty training, instruction or duties, or
 annual full-time training duty, active duty for training or other annual
 training pursuant to any law of the United States or  section  forty-six
 of  this  chapter  or  the regulations issued thereunder, or in order to
 attend service schools conducted by  the  armed  forces  of  the  United
 States, temporarily leaves or has left his OR HER position, other than a
 temporary  position, in the employ of any employer and who, being quali-
 fied to perform the duties of such position, makes application for reem-
 ployment within ten days after completion of such  temporary  period  of
 service.
   2-a.  The  benefits,  rights  and privileges granted to persons in the
 military service by this section shall be extended to and be  applicable
 to  any  person who, in order to perform initial full-time training duty
 or initial active duty for training with or in an  armed  force  of  the
 United  States  under  the provisions of this chapter or the laws of the
 United States or both, temporarily leaves or has left his OR  HER  posi-
 tion, other than a temporary position, in the employ of any employer and
 who,  being  qualified  to  perform  the  duties of such position, makes
 application for re-employment within sixty days after completion of such
 period of full-time training duty or active duty for training.
   3. The benefits, rights and privileges granted to persons in the mili-
 tary service by this section shall be extended to and be  applicable  to
 any  person  who is or becomes a member of the organized militia OF THIS
 STATE OR OF ANY OTHER STATE AS PROVIDED FOR BY  LAW,  or  of  a  reserve
 component  of  the armed forces of the United States and who, because of
 such membership is discharged by his OR HER employer or whose employment
 is suspended by his OR HER employer because of such membership and  who,
 being  qualified  to perform the duties of such position, makes applica-
 tion for reemployment or termination of the period of his OR HER suspen-
 sion within ten days after such discharge or suspension. These benefits,
 rights and privileges are not applicable  to  persons  participating  in
 routine  reserve  officer training corps training except when performing
 advanced training duty as a member of a reserve component of  the  armed
 forces.
   4.  Any  person  who  is restored to a position in accordance with the
 provisions of this  section  shall  be  considered  as  having  been  on
 furlough  or  leave  of  absence  during  his  OR HER period of military
 service, temporary service under subdivision two  or  subdivision  two-a
 [hereof]  OF  THIS SECTION, or of discharge or suspension under subdivi-
 sion three [hereof] OF THIS SECTION, shall be so restored  without  loss
 of  seniority,  shall  be  entitled to participate in insurance or other
 benefits offered by the employer pursuant to established rules and prac-
 tices relating to employees on furlough or leave of  absence  in  effect
 with  the  employer at the time such person entered the military service
 or commenced such temporary service or was so discharged  or  suspended,
 S. 5441                             3
 
 and shall not be discharged from such position without cause, within one
 year after such restoration.
   5.  In  case  any private employer fails or refuses to comply with the
 provisions of this section, the supreme court of the  state  within  the
 county  in  which  such  private employer maintains a place of business,
 shall have the power, upon the filing of a  motion,  petition  or  other
 appropriate  pleading,  by  the  person entitled to the benefits of such
 provisions, to specifically require such employer to  comply  with  such
 provisions,  and may, as an incident thereto, compensate such person for
 any loss of wages or benefits suffered  by  reason  of  such  employer's
 unlawful  action.  The  court  shall  order a speedy hearing in any such
 case, and shall advance it on the calendar. Any person  claiming  to  be
 entitled  to  the  benefits of the provisions of this section may appear
 and be represented by counsel, or,  upon  application  to  the  attorney
 general  of  the state, may request that the attorney general appear and
 act on his OR HER behalf. If the attorney general is  reasonably  satis-
 fied that the person so applying is entitled to such benefits, he OR SHE
 shall appear and act as attorney for such person in the amicable adjust-
 ment  of  the  claim,  or in the filing of any motion, petition or other
 appropriate pleading and the prosecution thereof.  In  the  hearing  and
 determination  of  such applications under this section no fees or court
 costs shall be assessed against a person so applying for such benefits.
   § 3. This act shall take effect immediately.