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