ST24 Michigan (December 2007; Updated August 2010 - no changes to law)
1.18: USERRA and Other Laws
2.0: Paid Leave
Reemployment Rights for Public Employees in Michigan
By CAPT Samuel F. Wright, JAGC, USN (Ret.)
Michigan law provides as follows concerning reemployment rights for public employees after voluntary or involuntary military service:
"Sec. 2. (a) Any public employee who leaves a position while this act is in effect, or who left such position prior to such effective date but not earlier than June 27, 1950, whether voluntarily or involuntarily, in order to perform military duty, or who was performing military duty on June 27, 1950, and who is relieved or discharged from such duty under honorable conditions, and makes application for reemployment within 90 days after he is relieved from military duty or from hospitalization continuing after discharge for a period of not more than one year shall-
"(1) If still qualified to perform the duties of such position, be restored to such position if it exists and is not held by a person with greater seniority, otherwise to a position of like seniority, status and pay;
"(2) If not qualified to perform the duties of such position by reason of disability sustained during such service, such public employee shall be placed in such other position, the duties of which he is qualified to perform, as will provide him like seniority, status and pay, or the nearest approximation thereof consistent with the circumstances of his case.
"(b) In the case of any person who is entitled to be restored to a position in accordance with the provisions of this act, if it is determined that the department or agency with which such person was employed immediately prior to his entry upon training and service aforesaid-
"(1) Is no longer in existence and its functions have not been transferred to any other agency, or
"(2) For any reason it is not feasible for such person to be restored to such department or agency, it shall be determined whether or not there is a position in any other department or agency of the same public employer for which such person is qualified and which is either vacant or held by a person having a temporary appointment thereto or less seniority than the employee returning from military service. In any case in which it is determined that there is such a position, such person shall be restored in service and appointed to such position by the department or agency in which such position exists." (Michigan Compiled Laws, section 35.352.)
This law applies to employees of the State of Michigan and its political subdivisions (counties, cities, school districts, etc.). The Legislature enacted this section in 1951, 43 years before Congress enacted the Uniformed Services Employment and Reemployment Rights (USERRA). As I explained in Law Review 104, Congress enacted USERRA in 1994, as the complete rewrite of the Veterans' Reemployment Rights (VRR) law, which Congress originally enacted in 1940. The VRR law has applied to the federal government and to private employers since 1940, but it did not apply to state and local governments until 1974, 23 years after the Michigan Legislature enacted this provision.
As I explain in Law Review 77, there are five eligibility criteria for reemployment rights under USERRA. The person must have left the civilian position of employment for voluntary or involuntary uniformed service and must have given the employer prior oral or written notice. The person's cumulative period or periods of uniformed service, relating to that employer relationship, must not have exceeded five years. The person must have been released from the period of service without having received a punitive (by court martial) or other-than-honorable discharge, and the person must have made a timely application for reemployment. If the period of service was more than 180 days, the individual can wait up to 90 days, after the date of release from service, to apply for reemployment.
As I explain in Law Review 201, all involuntary service and some voluntary service are exempted from the computation of the five-year limit. But section 35.352 of the Michigan law contains no explicit durational limit. A Michigan public employee who has exceeded the five-year limit would at least arguably have the right to reemployment under the state law. Section 4301(a) of USERRA [38 U.S.C. 4301(a)] provides that USERRA does not supersede a state law that provides greater or additional rights.
Section 35.352(a) provides that the 90-day deadline to apply for reemployment can be extended to one year if the veteran is hospitalized, after release from active duty. Section 4312(e)(2)(A) of USERRA [38 U.S.C. 4312(e)(2)(A)] provides that the 90-day deadline can be extended up to two years if the veteran is hospitalized or convalescing from a service-connected injury or illness. Section 4302(b) of USERRA [38 U.S.C. 4302(b)] provides that USERRA overrides a state law that purports to limit rights granted by USERRA. Under the Supremacy Clause (Article 6, Clause 2) of the U.S. Constitution, federal law trumps conflicting state law.
Michigan law provides as follows concerning state retirement credit for public employees whose careers as public employees are interrupted by military service:
"(1) A member of the retirement system who, while an employee of this state, was or who is drafted or enlisted into active military or other armed service of the United States government during time of war, or a member who is drafted or enlisted into active armed service during time of peace, and who returns for reemployment as a state employee within six months after the member's discharge from active service, or if hospitalized at date of discharge, returns for reemployment as a state employee within six months after release from the military facility, shall have all that active service credited as a member of the retirement system, in the same manner as if the member had served the state uninterruptedly but not more than five years of that service may be credited to a member. During the period of active service, and until return to state employment, the member's contributions to the employee's savings fund shall be suspended and the balance in the employees' savings fund standing to the member's credit as of the last payroll date preceding the leave of absence from the service of the member's department shall be accumulated at regular interest. If the member withdraws all or part of the accumulated contributions from the employees' savings fund, the active service shall not be credited until the member returns to the fund all amounts the member withdrew, together with regular interest computed from the date of withdrawal to the date of repayment.
"(2) On or after Jan. 1, 1978, a member of this retirement system who does not meet the requirements of subsection (1) and who was drafted, enlisted, inducted, or commissioned into active duty with the military or other armed service of the United States government may elect to receive service credit for not more than five years of active duty upon request and payment to the retirement system of an amount equal to 5 percent of the member's full-time compensation for the fiscal year in which payment is made multiplied by the years of service that the member elects to purchase up to the maximum. Service shall not be credited if it is or would be credited under any other federal, state, or local publicly supported retirement system, but this restriction does not apply to those persons who have or will have acquired retirement eligibility under the federal government for service in the Reserve. Armed service shall not be credited under this subsection until the member has accumulated the number of years of credited service needed to vest in the retirement system. Armed service under this subsection shall not be creditable to a member on deferred retirement status under section 20(4) before May 18, 1978. For purposes of computing payment under this subsection, the compensation amount used shall not be less than the highest fiscal year compensation previously received by the member.
"(3) A person who was in the employ of the Michigan employment service on Jan. 1, 1942, the date on which the employment service and its personnel were taken over by the United States employment service, and who continued in the employ of the United States employment service or who was temporarily taken out of the United States employment service for service in the war manpower commission or other government agency engaged in the prosecution of the war and later returned to the United States employment service, and whose service to the state, United States government, and state again was continuous and who was in the employ either of the United States employment service or of this state on Nov. 16, 1946, the date on which the employment service was returned to the state, and who reentered state service on or before that date, shall upon his reentry into the state service become an original member of the retirement system, and shall receive full service credit for the period during which the personnel of the Michigan employment service was taken over by the United States employment service.
"(4) A person who entered into the employ of the Michigan employment service while the employment service was under the United States employment service and who retires after April 30, 1978, may receive service credit for the service under the United States employment service by contributing to the retirement system contributions the person would have made from July 1, 1943, to Nov. 16, 1946, as if that service were rendered as a state employee, plus the interest with which the contributions would have been credited from the January following the year of employment to the date of repayment. The salary on which contributions are based shall be the salary received as a state employee on Nov. 16, 1946. "(5) A member who has prior service is entitled to credit for that prior service if at the time of retirement the member has 15 or more years of total service, of which the last five are continuous years of service and if the member contributions equal the contributions made or that would have been made for not less than 15 years of membership service. In the computation of unpaid member contributions, the contribution rate will be computed on the member's salary level at retirement or date of payment, whichever first occurs." (Michigan Compiled Laws, section 38.18.)
Section 38.18 attempts to limit credit to involuntary service in peacetime, or voluntary or involuntary service in peacetime or in wartime. USERRA applies to voluntary as well as involuntary service, in peacetime as well as wartime. The Michigan law is preempted by federal law insofar as it purports to deny credit for a period of uniformed service on the basis of the service having been voluntary and during a time of peace.
Section 38.18(2) of the Michigan law provides that the period of active military service for which the employee may receive state retirement credit may not under any circumstances exceed five years. Under some circumstances, this five-year limit is preempted by USERRA. As I explained in Law Review 201, all involuntary service and some voluntary service are exempted from the computation of the five-year limit under USERRA. Thus, under some circumstances federal law requires the state of Michigan to accord state retirement credit for more than five years of military service.
For example, let us take the hypothetical Joe Smith, hired by the state of Michigan in September 2000. A year later, after the terrorist attacks of Sept. 11, 2001, Mr. Smith enlists in the Marine Corps Reserve. Mr. Smith leaves his job in January 2002 to attend his six months of initial active duty training in the Marine Corps Reserve, returning to work in July 2002. This period of required Reserve training does not count toward Mr. Smith's five-year limit. In January 2003, Mr. Smith is involuntarily called to active duty until January 2004. This period of involuntary service is also exempted from Mr. Smith's USERRA limit. In January 2004, at the end of the involuntary call-up, Mr. Smith elects to remain on active duty, voluntarily, for another five years, until January 2009, when he is released from active duty under honorable conditions and makes a timely application for reemployment with the state of Michigan. Mr. Smtih returns to work and remains continuously employed until September 2030, when he retires with 30 years of state service. Under these circumstances, USERRA requires Michigan to credit Mr. Smith for the entire 61/2 years that he was away from work for military service, early in his state career. Under the Supremacy Clause of the U.S. Constitution, federal law trumps conflicting state law.
Section 32.273a of Michigan Compiled Laws permits but does not require Michigan's cities, villages, townships, and counties to pay differential pay to their employees who have left their jobs for military service. That section also permits but does not require cities, villages, townships, and counties to grant a few days of paid military leave for National Guard or Reserve training. I found no provision giving employees of the state of Michigan the right to paid military leave.
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