ST54 Wyoming (December 2007; updated August 2010 - no changes to law)
1.18: USERRA and Other Laws
2.0: Paid Leave
Military Leave for Public Employees in Wyoming
By Captain Samuel F. Wright, JAGC, USN (Ret.)
Wyoming law provides as follows concerning military leave for employees of the state and its political subdivisions:
“(a) Any member of the Wyoming national guard or United States military forces reserve who is an officer or employee of this state or any political subdivision, municipal corporation or any public agency or entity of the state, including community colleges, shall be given a military leave of absence with pay at the regular salary or wage which the employee normally receives, not to exceed fifteen (15) calendar days in any one (1) calendar year to perform service in the uniformed services in addition to any other leave or vacation time to which the person is otherwise entitled.
“(b) Subject to the conditions prescribed in paragraphs (c)(i) through (v) of this section, any officer or employee of the state or any political subdivision, municipal corporation or public agency of the state who has been employed for one (1) year and who is a member of the national guard or any other component of the military forces of the state, a member of the reserve forces of the United States or who is inducted into the military service of the United States, is entitled to leave of absence from his public office or employment without pay but without loss of seniority, status, efficiency rating, vacation, sick leave or other benefits while he is engaged in active military training or service ordered or authorized by proper authority pursuant to law exceeding fifteen (15) days in any calendar year. Such leave is in addition to any other military leave or vacation time to which the officer or employee may be entitled by law if the required military service is satisfactorily performed, which is presumed unless the contrary is established.
“(c) Upon completion of service as provided by subsection (b) of this section, the officer or employee shall be reinstated to the public position held at the time of entry into service or a position of like seniority, status and pay, if available, upon the following conditions:
“(i) The position has not been abolished or the term thereof, if limited, has not expired;
“(ii) He is not physically or mentally disabled from performing the duties of the position;
“(iii) He makes written application for reinstatement to the appointing authority within thirty (30) days following release from military service or within ninety (90) days after discharge from hospitalization or medical treatment which immediately follows the termination of, and results from, the service but not to exceed one (1) year and ninety (90) days after termination of service notwithstanding hospitalization or medical treatment;
“(iv) He submits an honorable discharge or other release by proper authority indicating his military service was satisfactory; and
“(v) The military service does not exceed five (5) years plus any period of additional service imposed by law.
“(d) Upon reinstatement, the officer or employee has the same rights with respect to accrued and future seniority, status, efficiency rating, vacation, sick leave and other benefits as if he had been actually employed during the time of leave. During the absence, the state of Wyoming or a political subdivision shall discontinue its share of payments for social security, insurance of any type and state retirement unless the employee elects to contribute to the state retirement plan during his absence and the job or office remains open pending his return in which case the state of Wyoming or a political subdivision will likewise contribute its share. No officer or employee reinstated shall be removed or discharged within one (1) year thereafter except for cause, after notice and hearing, but this shall not operate to extend a term of service or office limited by law.
“(e) This section shall be liberally construed in favor of the member of the Wyoming national guard or United States military forces who is an officer or employee of this state or any political subdivision, municipal corporation or any public agency of the state.” (Wyoming Statutes, section 19-11-108.)
Subsection (a) of section 19-11-108 is the only meaningful part of the whole section. Subsection (a) gives public employees in Wyoming the right to 15 days of paid military leave per year. The rest of section 19-11-108 simply restates, or in some cases misstates, the rights that these public employees already have under a federal law called the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA applies to state and local governments, as well as private employers and the federal government.
In at least three respects, section 19-11-108 wrongfully purports to limit USERRA rights. First, this state provision purports to limit reemployment rights to persons who worked for the state or political subdivision employer for at least a year before the period of military service. USERRA has no such requirement—you can start a new job on Monday and get mobilized on Tuesday and have reemployment rights under USERRA.
Second, section 19-11-108 provides that the individual does not have the right to reemployment if he or she is physically or mentally disabled from performing the duties of the position of employment. Section 4313(a)(3) of USERRA [38 U.S.C. 4313(a)(3)] applies to the situation of the returning veteran with a service-connected disability, such as loss of a limb or post-traumatic stress syndrome. The employer is required to make reasonable efforts to accommodate the disability in the position of employment that the veteran would have attained if continuously employed. If the disability cannot be reasonably accommodated in that position, the employer must reemploy the disabled veteran in another position for which he or she is qualified, or can become qualified with reasonable employer efforts, and that provides like seniority, status, and pay, or the closest approximation thereof consistent with the circumstances of the case. I invite the reader’s attention to Law Reviews 121, 135, 199, and 0640, concerning disabled veterans and USERRA.
Third, Wyoming’s section 19-11-108 requires the returning veteran to apply for reemployment within 30 days. Under USERRA, the deadline to apply for reemployment is 90 days after release from a period of service of 181 days or more, and the 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 provides that USERRA supersedes a state law that purports to limit USERRA rights or to impose an additional prerequisite upon the exercise of those rights. Article VI, Clause 2 of the U.S. Constitution (commonly referred to as the “Supremacy Clause”) provides that federal law trumps conflicting state law. See Gibbons v. Ogden, 22 U.S. 1 (1824). Section 19-11-108 fails under the Supremacy Clause insofar as it purports to limit USERRA rights.
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