Florida Senate - 2009                       CS for CS for SB 206
       
       
       
       By the Committees on Judiciary; and Military Affairs and
       Domestic Security; and Senators Justice and Deutch
       
       
       
       590-02378-09                                           2009206c2
    1                        A bill to be entitled                      
    2         An act relating to military affairs; amending s.
    3         250.35, F.S.; clarifying and updating references with
    4         respect to courts-martial; amending s. 250.482, F.S.;
    5         revising applicability of provisions with respect to
    6         immunity from penalization for National Guard members
    7         ordered into state active duty by employers; requiring
    8         National Guard members to notify employers of intent
    9         to return to work; providing exceptions under which
   10         employers are not required to allow such members to
   11         return to work; providing for entitlement to seniority
   12         and other rights and benefits for National Guard
   13         members returning to work following state active duty;
   14         providing that such members may not be discharged from
   15         employment except for cause; providing rights and
   16         requirements with respect to use of vacation and leave
   17         by such members; removing a limitation with respect to
   18         the right of an employee ordered into state active
   19         duty to bring a civil action for a specified violation
   20         by an employer; amending s. 250.82, F.S.; clarifying
   21         provisions; creating s. 250.905, F.S.; providing for
   22         the imposition of a civil penalty for specified
   23         noncompliance with specified provisions of ch. 250,
   24         F.S., or with other specified provisions of federal
   25         law; providing an effective date.
   26  
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Subsections (1) and (2) of section 250.35,
   30  Florida Statutes, are amended to read:
   31         250.35 Courts-martial.—
   32         (1) The Uniform Code of Military Justice (UCMJ), 10 U.S.C.
   33  ss. 801 et seq., and the Manual for Courts-Martial (2008 2002
   34  Edition) are adopted for use by the Florida National Guard,
   35  except as otherwise provided by this chapter.
   36         (2) Courts-martial may try any member of the Florida
   37  National Guard for any crime or offense made punishable by the
   38  Uniform Code of Military Justice (2008 2002 Edition), except
   39  that a commissioned officer, warrant officer, or cadet may not
   40  be tried by summary courts-martial.
   41         Section 2. Section 250.482, Florida Statutes, is amended to
   42  read:
   43         250.482 Troops ordered into state active service; not to be
   44  penalized by employers and postsecondary institutions.—
   45         (1) If a member of the Florida National Guard is ordered
   46  into state active duty pursuant to this chapter, a private or
   47  public employer, or an employing or appointing authority of this
   48  state, its counties, school districts, municipalities, political
   49  subdivisions, career centers, community colleges, or
   50  universities, may not discharge, reprimand, or in any other way
   51  penalize such member because of his or her absence by reason of
   52  state active duty.
   53         (2)(a)Upon the completion of state active duty, a member
   54  of the National Guard shall promptly notify the employer of his
   55  or her intent to return to work.
   56         (b)An employer is not required to allow a member of the
   57  National Guard to return to work under this section if:
   58         1.The employer’s circumstances have so changed as to make
   59  employment impossible or unreasonable;
   60         2.Employment would impose an undue hardship on the
   61  employer;
   62         3.The employment from which the member of the National
   63  Guard leaves to serve in state active duty is for a brief,
   64  nonrecurrent period and there is no reasonable expectation that
   65  such employment will continue indefinitely or for a significant
   66  period; or
   67         4.The employer had legally sufficient cause to terminate
   68  the member of the National Guard at the time he or she left for
   69  state active duty.
   70  
   71  The employer has the burden of proving the impossibility or
   72  unreasonableness, undue hardship, the brief or nonrecurrent
   73  nature of the employment without a reasonable expectation of
   74  continuing indefinitely or for a significant period, or the
   75  legally sufficient cause to terminate the person at the time he
   76  or she left for state active duty.
   77         (c)A member of the National Guard who returns to work
   78  after serving on state active duty is entitled to:
   79         1.The seniority that the member had at his or her place of
   80  employment on the date of the commencement of his or her state
   81  active duty and any other rights and benefits that inure to the
   82  member as a result of such seniority; and
   83         2.Any additional seniority that the member would have
   84  attained at his or her place of employment if he or she had
   85  remained continuously employed and the rights and benefits that
   86  inure to the member as a result of such seniority.
   87         (d)A member of the National Guard who returns to work
   88  after serving on state active duty may not be discharged from
   89  such employment for a period of 1 year after the date the member
   90  returns to work, except for cause.
   91         (e)An employer may not require any National Guard member
   92  returning to employment following a period of state active duty
   93  service to use vacation, annual, compensatory, or similar leave
   94  for the period during which the member was ordered into state
   95  active duty. However, any such returning member shall, upon his
   96  or her request, be permitted to use, for the period during which
   97  the member was ordered into state active duty, any vacation,
   98  annual, compensatory, or similar leave with pay accrued by the
   99  member prior to the commencement of his or her state active duty
  100  service.
  101         (3)(2) If the Adjutant General certifies that there is
  102  probable cause to believe there has been a violation of this
  103  section, an employee who has been employed for a period of at
  104  least 1 year prior to being ordered into state active duty so
  105  injured by a violation of this section may bring civil action
  106  against an employer violating this section in a court of
  107  competent jurisdiction of the county in which the alleged
  108  violator resides or has his or her principal place of business,
  109  or in the county wherein the alleged violation occurred. Upon
  110  adverse adjudication, the defendant is liable for actual damages
  111  or $500, whichever is greater. The prevailing party in any
  112  litigation proceedings is entitled to recover reasonable
  113  attorney’s fees and court costs.
  114         (4)(3) The certification of probable cause may not be
  115  issued until the Adjutant General, or his or her designee, has
  116  investigated the issues. All employers and other personnel
  117  involved with the issues of such investigation must cooperate
  118  with the Adjutant General in the investigation.
  119         Section 3. Section 250.82, Florida Statutes, is amended to
  120  read:
  121         250.82 Applicability of state and federal law.—
  122         (1) Florida law provides certain protections to members of
  123  the United States Armed Forces, the United States Reserve
  124  Forces, and the Florida National Guard in various legal
  125  proceedings and contractual relationships. In addition to these
  126  state provisions, federal law also contains protections, such as
  127  those provided in the Servicemembers Civil Relief Act (SCRA),
  128  Title 50, Appendix U.S.C. ss. 501 et seq., and the Uniformed
  129  Services Employment and Reemployment Rights Act (USERRA), Title
  130  38 United States Code, chapter 43, that are applicable to
  131  members in every state even though such provisions are not
  132  specifically identified under state law.
  133         (2) To the extent allowed by federal law, the state courts
  134  shall have concurrent jurisdiction for enforcement over all
  135  causes of action arising from the provisions of federal law and
  136  may award a remedy as provided therein.
  137         Section 4. Section 250.905, Florida Statutes, is created to
  138  read:
  139         250.905Penalty.—In addition to any other relief or penalty
  140  provided by state or federal law, a person is liable for a civil
  141  penalty of not more than $1,000 per violation if that person
  142  violates any provision of this chapter affording protections to
  143  members of the United States Armed Forces, the United States
  144  Reserve Forces, or the National Guard or any provision of
  145  federal law affording protections to such servicemembers over
  146  which a state court has concurrent jurisdiction under s. 250.82.
  147         Section 5. This act shall take effect July 1, 2009.