senate Bill S4583A

Signed By Governor
2011-2012 Legislative Session

Relates to abolition of positions occupied by public employees absent on military duty

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Archive: Last Bill Status Via A1428 - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jul 20, 2011 signed chap.152
Jul 08, 2011 delivered to governor
Jun 23, 2011 returned to assembly
passed senate
3rd reading cal.1107
substituted for s4583a
Jun 23, 2011 substituted by a1428b
Jun 14, 2011 advanced to third reading
Jun 13, 2011 2nd report cal.
Jun 07, 2011 1st report cal.1107
Jun 01, 2011 print number 4583a
amend and recommit to finance
May 17, 2011 reported and committed to finance
Apr 12, 2011 referred to veterans, homeland security and military affairs

Votes

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Jun 7, 2011 - Finance committee Vote

S4583A
29
0
committee
29
Aye
0
Nay
6
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Finance committee vote details

May 17, 2011 - Veterans, Homeland Security and Military Affairs committee Vote

S4583
13
1
committee
13
Aye
1
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show committee vote details

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S4583 - Bill Details

See Assembly Version of this Bill:
A1428B
Law Section:
Military Law
Laws Affected:
Amd §243, Mil L; amd §81, add §88, Civ Serv L

S4583 - Bill Texts

view summary

Relates to abolition of positions occupied by public employees absent on military duty; mandates compliance with the Federal Employment and Reemployment Rights Act of 1994; prohibits abolition of positions based solely upon the fact that the positions are filled by individuals engaged in military duty.

view sponsor memo
BILL NUMBER:S4583

TITLE OF BILL:
An act
to amend the military law and the civil service law,
in relation to abolition of positions
occupied by public employees absent on
military duty

PURPOSE:
Prohibits public employers from abolishing positions occupied by
public employees absent on military duty unless all other similar
positions are first eliminated

SUMMARY OF PROVISIONS:
Section 1: Subdivision 11 of the section 243 of the military law is
amended to state that notwithstanding any other provision of law to
the contrary, no public employer shall abolish a position occupied by
a public employee engaged in the performance of military duty, unless
the employer first abolishes all similar positions, and if the
position is abolished prior to the termination of his or her military
duty, his or her name shall be placed forthwith upon a preferred list.

Section 2: Subdivision 3 of section 243 of the military law is amended
to make technical corrections by referencing to subdivision 11 of
that section, and section 64 of the civil service law.

Section 3: Subdivision 7 of section 83 of the civil service law is
amended by adding a new subparagraph (6) which states that employees
engaged in the performance of military duty at the time of abolition
or elimination of their position shall be granted preference in
retention, in the manner provided for in subdivision 11 of section
243 of the military law.

Section 4: States the effective date.

JUSTIFICATION:
In late 2010, the Metropolitan Transportation Authority (MIA) allowed
several service members to be laid off while they are serving
overseas due to the authority's downsizing.

While taking into the account the state of our economy and the need
for companies to downsize, businesses should not balance their budget
on the backs of our service men and women. These heroic individuals
make the ultimate sacrifice; spending time away from their families
and putting their lives and careers on hold to defend our rights and
freedoms.

The last worry on a soldier's mind while serving this Country should
be if they will have a job when they come back. For their service,
they should be thanked, not sent to the unemployment line.

The MTA's interpretation of the Soldiers and Sailors Civil Relief Act
is that a downsizing public employer doesn't have to make an
exception for soldiers on leave from their civilian jobs. In the
absence of common decency, this can be rectified with legislation.


LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4583

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 12, 2011
                               ___________

Introduced  by  Sen.  BALL  --  read twice and ordered printed, and when
  printed to be committed to the Committee on Veterans, Homeland Securi-
  ty and Military Affairs

AN ACT to amend the military law and the civil service law, in  relation
  to abolition of positions occupied by public employees absent on mili-
  tary duty

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 11 of section 243 of the military law, as added
by chapter 420 of the laws of 1953, is amended to read as follows:
  11.  [Preferred]  ELIMINATION  OF  POSITIONS  AND   PREFERRED   lists.
NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW TO THE CONTRARY, NO PUBLIC
EMPLOYER SHALL ABOLISH A POSITION OCCUPIED BY A PUBLIC EMPLOYEE  ENGAGED
IN THE PERFORMANCE OF MILITARY DUTY, EXCEPT AS HEREINAFTER PROVIDED:
  (A)  IF  A  PUBLIC EMPLOYER FIRST ABOLISHES ALL SIMILAR POSITIONS, THE
EMPLOYER MAY ABOLISH A POSITION OCCUPIED BY A PUBLIC EMPLOYEE ENGAGED IN
THE PERFORMANCE OF MILITARY DUTY. IF TWO OR MORE PUBLIC EMPLOYEES IN ANY
SIMILAR POSITION ARE ENGAGED IN THE PERFORMANCE OF  MILITARY  DUTY,  AND
THE  FOREGOING  ACTION  WOULD  RESULT IN THE ELIMINATION OF AT LEAST ONE
POSITION OCCUPIED BY A PUBLIC EMPLOYEE, THE ELIMINATION OF THE  POSITION
OR  POSITIONS HELD BY THE PUBLIC EMPLOYEES ENGAGED IN THE PERFORMANCE OF
MILITARY DUTY SHALL BE MADE IN ORDER OF SENIORITY, COMMENCING  WITH  THE
LEAST SENIOR PUBLIC EMPLOYEE.
  (B)  If  the position occupied by a public employee is abolished prior
to the termination of his military duty IN THE MANNER SET FORTH IN PARA-
GRAPH (A) OF THIS SUBDIVISION, his OR HER name shall be placed forthwith
upon a preferred list, as  herein  provided.  Public  employees  in  the
competitive  class  of  the  civil service shall have their names placed
upon a preferred eligible list, pursuant to the  provisions  of  section
[thirty-one]  EIGHTY-ONE  of  the civil service law and public employees
subject to section twenty-five hundred [thirty-five] EIGHTY-FIVE of  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05550-04-1

S. 4583                             2

education  law  shall  have  their names placed upon a preferred list as
provided in such [section] SECTIONS.
  (C)  FOR  PURPOSES OF THIS SUBDIVISION "SIMILAR POSITION" SHALL MEAN A
POSITION IN THE AREA FOR THE PERFORMANCE  OF  DUTIES  SIMILAR  TO  THOSE
PERFORMED  IN  THE  POSITION  HELD BY THE PUBLIC EMPLOYEE ENGAGED IN THE
PERFORMANCE OF MILITARY DUTY.
  S 2. Subdivision 3 of section 243 of the military  law,  as  added  by
chapter 420 of the laws of 1953, is amended to read as follows:
  3.  Substitutes. A position held by a public employee who is absent on
military duty shall[, so far as practicable,] be continued in existence,
AS PROVIDED IN SUBDIVISION ELEVEN OF THIS SECTION, but shall  be  deemed
temporarily  vacant and shall be filled only when the public interest so
requires. Any appointment to fill such vacancy shall be designated as  a
substitute  appointment  and  the request for certification, the certif-
ication and the indicia of appointment shall show  that  the  person  is
being  appointed  as  a  substitute.  Any  public  employee, who accepts
appointment as a substitute shall be granted a leave of absence from his
former position until the termination of such appointment and the tempo-
rary vacancy resulting from such leave of absence  shall  be  filled  in
like  manner  only when the public interest so requires and any appoint-
ment to such position shall also be designated as a substitute  appoint-
ment  and the request for certification, the certification and the indi-
cia of appointment shall show that the person is being appointed to such
position as a substitute. Every such substitute appointment shall be for
a period not exceeding the leave of absence of the former incumbent  and
shall  be  made  in  accordance with the provisions of law applicable to
such position, provided, however, that such substitute  appointment  may
be  continued  for  a  period in excess of one year, notwithstanding the
provisions of section [fifteen] SIXTY-FOUR of  the  civil  service  law.
Such substitute employee shall acquire no right to permanent appointment
or  tenure by virtue of his service as a substitute and such service may
be terminated at any time in the discretion of the appointing officer or
body. His rights, if any, with respect to appointment or  tenure,  shall
not, however, be impaired in any way by his acceptance of an appointment
as  a substitute and his name shall remain on any eligible or other list
and he shall be certified as eligible for any other appointment  author-
ized by law during the existence of such list.
  The appointment of a substitute shall terminate (a) upon the return of
the  former incumbent to his position or (b) upon the death or permanent
total disability of the former incumbent or  (c)  upon  failure  of  the
former incumbent to return to said position within ninety days after the
termination  of  his  military  duty  or  (d)  upon  the  appointment or
promotion of the former incumbent to another position as  authorized  by
subdivision  six of this section, and, upon the happening of any of such
events, said position may then be filled in the manner provided by law.
  S 3. Subdivision 7 of section 85 of the civil service law, as  amended
by chapter 532 of the laws of 1976, is amended to read as follows:
  7.  Preference  in  retention  upon the abolition of positions. In the
event of the abolition or elimination  of  any  position  in  the  civil
service  for  which  eligible  lists are established or any position the
incumbent of which is encompassed by section eighty-a of  this  chapter,
any  suspension,  demotion  or displacement shall be made in the inverse
order of the date of original appointment in the service subject to  the
following  conditions:  (1)  blind  employees  shall be granted absolute
preference in retention; (2) the date of such original  appointment  for
disabled  veterans  shall  be deemed to be sixty months earlier than the

S. 4583                             3

actual date, determined in accordance with section thirty of the general
construction law; (3) the date of such original appointment for non-dis-
abled veterans shall be deemed to be  thirty  months  earlier  than  the
actual date, determined in accordance with section thirty of the general
construction law; (4) no permanent competitive class employee subject to
the jurisdiction of the civil service commission of the city of New York
who  receives  an  injury  in the line of duty, as defined in this para-
graph, which  requires  immediate  hospitalization,  and  which  is  not
compensable  through workmen's compensation may be suspended, demoted or
displaced pursuant to section eighty of this chapter within three months
of the date  of  his  confinement,  provided  that  medical  authorities
approved  by such commission shall certify that the employee is not able
to perform the duties of  his  position;  provided  further,  that  such
three-month  period  may  be  extended by such commission for additional
periods not to exceed one year each upon the  certification  of  medical
authorities  selected  by  such  commission  that  the employee is, as a
result of his injury, still not able to perform the duties of his  posi-
tion.  An injury in the line of duty, as used herein, shall be construed
to mean an injury which is incurred as a direct  result  of  the  lawful
performance  of  the  duties  of the position. In determining whether an
injury was received in the line of duty, such commission  shall  require
the head of the agency by which the employee is employed to certify that
the  injury was received as a direct result of the lawful performance of
the employee's duties; [and] (5)  the  spouse  of  a  veteran  with  one
hundred percent service connected disability shall be deemed to be sixty
months  earlier  than  the  actual  date,  determined in accordance with
section thirty of the general construction law, provided, the spouse  is
domiciled  with the veteran-spouse and is the head of the household; AND
(6) EMPLOYEES ENGAGED IN THE PERFORMANCE OF MILITARY DUTY AT THE TIME OF
ABOLITION OR ELIMINATION OF THEIR POSITION SHALL BE  GRANTED  PREFERENCE
IN  RETENTION,  IN  THE  MANNER  PROVIDED  FOR  IN SUBDIVISION ELEVEN OF
SECTION TWO HUNDRED FORTY-THREE OF THE MILITARY LAW.  This section shall
not be construed as conferring any additional benefit upon such employee
other than a preference in retention. Such employee shall be subject  to
transfer upon the abolition of his function within his agency or depart-
ment.
  S 4. This act shall take effect immediately.

Co-Sponsors

S4583A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A1428B
Law Section:
Military Law
Laws Affected:
Amd §243, Mil L; amd §81, add §88, Civ Serv L

S4583A (ACTIVE) - Bill Texts

view summary

Relates to abolition of positions occupied by public employees absent on military duty; mandates compliance with the Federal Employment and Reemployment Rights Act of 1994; prohibits abolition of positions based solely upon the fact that the positions are filled by individuals engaged in military duty.

view sponsor memo
BILL NUMBER:S4583A

TITLE OF BILL:
An act
to amend the military law and the civil service law,
in relation to abolition of positions
occupied by public employees absent on
military duty

PURPOSE OR GENERAL IDEA OF BILL:
Relates to abolition of positions
occupied by public employees absent on military duty

SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Section 243 of the military law is amended by adding a new
subdivision 10-b to state that if a public employer consolidates,
abolishes, displaces, or demotes a position in accordance with
section eighty, eight-a, or eighty-five of the civil service law,
which is occupied by a public employee currently on active duty with
the armed forces of the United States, as pursuant to title ten,
fourteen, or thirty-two of the United States code, such employer
shall comply with subdivisions eleven and twelve of this section,
and, upon the termination of the public employee's active duty, as
defined in title ten, fourteen, or thirty-two of the United States
code, such public employer shall provide full re-employment rights
warranted to such employee under the Federal Uniformed Services
Employment and Reemployment Rights Act of 1994, provided, however,
the right of reemployment under this subdivision does not entitle
such employee to displacement rights over any person with greater
seniority. Such public employer shall not abolish any position or
positions solely based upon the fact that the position or positions
are currently filled by an individual or individuals engaged in
military duty. Subdivision 11 of section 243 of the military
is amended to make technical corrections referencing sections
eighty-one of the civil service law, and sections twenty-five hundred
ten, twenty-five hundred eighty-five and twenty-five hundred
eighty-eight of the education law.

Section 2: Subdivision 1 of section 81 of the civil service law is
amended to make technical corrections and to state that an employee
whose name was placed on a preferred list and at the time of such
placement was on active duty with the armed forces of the United
States, as pursuant to title ten, fourteen or thirty-two of the
United States code, shall not be eligible for employment
reinstatement for a period longer than four years after the
termination of military duty.

Section 3: The civil service law is amended by adding a new section 88
which prohibits against discrimination against public employees
serving in the armed forces and states that no public employer shall
deny employment, re-employment, or any benefit of employment to any
person
or employee based on the prospective, current or past enlistment,
appointment or commission with the armed forces of the United States.
Such person or persons shall be afforded full enforcement rights under


the laws of this state and of the United States, including the
Federal Uniformed Services Employment and Reemployment Act of 1994.

Section 4: States the effective date.

JUSTIFICATION:
In late 2010, the Metropolitan Transportation Authority
(MIA) allowed several service members to be laid off while they are
serving overseas due to the authority's downsizing.

This is an outrage. Even if it is legal for the MTA to let someone go
while they are serving their country in a time of war, it should not
be done. Our servicemen and women sacrifice their time and put their
family lives and careers on hold to defend each one of our rights and
freedoms.

For their service, they should be thanked, not sent to the
unemployment line.

The MTA's interpretation of the Soldiers and Sailors Civil Relief Act
is that a downsizing public employer doesn't have to make an
exception for soldiers on leave from their civilian jobs. In the
absence of common decency, this can be rectified with legislation.

PRIOR LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

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download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4583--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 12, 2011
                               ___________

Introduced  by Sens. BALL, LARKIN -- read twice and ordered printed, and
  when printed to be committed to the Committee  on  Veterans,  Homeland
  Security  and Military Affairs -- reported favorably from said commit-
  tee and committed to the Committee on Finance -- committee discharged,
  bill amended, ordered reprinted as amended  and  recommitted  to  said
  committee

AN  ACT to amend the military law and the civil service law, in relation
  to abolition of positions occupied by public employees absent on mili-
  tary duty

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 11 of section 243 of the military law, as added
by  chapter  420  of  the laws of 1953, is amended and a new subdivision
10-b is added to read as follows:
  10-B. IF A PUBLIC  EMPLOYER  CONSOLIDATES,  ABOLISHES,  DISPLACES,  OR
DEMOTES  A  POSITION,  IN  ACCORDANCE  WITH  SECTION EIGHTY, EIGHTY-A OR
EIGHTY-FIVE OF THE CIVIL SERVICE LAW, WHICH  IS  OCCUPIED  BY  A  PUBLIC
EMPLOYEE  CURRENTLY  ON  ACTIVE DUTY WITH THE ARMED FORCES OF THE UNITED
STATES, AS PURSUANT TO TITLE TEN, FOURTEEN OR THIRTY-TWO OF  THE  UNITED
STATES  CODE,  SUCH  EMPLOYER  SHALL COMPLY WITH SUBDIVISIONS ELEVEN AND
TWELVE OF THIS SECTION AND, UPON THE TERMINATION OF THE  PUBLIC  EMPLOY-
EE'S ACTIVE DUTY, AS DEFINED IN TITLE TEN, FOURTEEN OR THIRTY-TWO OF THE
UNITED  STATES  CODE, SUCH PUBLIC EMPLOYER SHALL PROVIDE FULL RE-EMPLOY-
MENT RIGHTS WARRANTED TO  SUCH  EMPLOYEE  UNDER  THE  FEDERAL  UNIFORMED
SERVICES  EMPLOYMENT  AND  REEMPLOYMENT  RIGHTS  ACT  OF 1994, PROVIDED,
HOWEVER, THE RIGHT OF RE-EMPLOYMENT  UNDER  THIS  SUBDIVISION  DOES  NOT
ENTITLE SUCH EMPLOYEE TO DISPLACEMENT RIGHTS OVER ANY PERSON WITH GREAT-
ER  SENIORITY.  SUCH  PUBLIC  EMPLOYER SHALL NOT ABOLISH ANY POSITION OR
POSITIONS SOLELY BASED UPON THE FACT THAT THE POSITION OR POSITIONS  ARE
CURRENTLY  FILLED  BY  AN  INDIVIDUAL OR INDIVIDUALS ENGAGED IN MILITARY
DUTY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05550-08-1

S. 4583--A                          2

  11. Preferred lists. If the position occupied by a public employee  is
abolished  prior  to the termination of his military duty his name shall
be placed forthwith upon a preferred list, as  herein  provided.  Public
employees in the competitive class of the civil service shall have their
names  placed upon a preferred eligible list, pursuant to the provisions
of section [thirty-one] EIGHTY-ONE of the civil service law  and  public
employees  subject to [section twenty-five hundred thirty-five] SECTIONS
TWENTY-FIVE HUNDRED TEN, TWENTY-FIVE HUNDRED EIGHTY-FIVE AND TWENTY-FIVE
HUNDRED EIGHTY-EIGHT of the education law shall have their names  placed
upon a preferred list as provided in such section.
  S  2. Subdivision 1 of section 81 of the civil service law, as amended
by chapter 283 of the laws of 1972, is amended to read as follows:
  1.  Establishment of preferred lists; general provisions. The head  of
any  department, office or institution in which an employee is suspended
or demoted in accordance with the  provisions  of  sections  eighty  and
eighty-a  of  this  [chapter]  TITLE  shall,  upon  such  suspension  or
demotion, furnish the state  civil  service  department  or  appropriate
municipal  commission, as the case may be, a statement showing his name,
title or position, date of appointment, and the date of and  reason  for
suspension  or  demotion.  It  shall  be  the duty of such civil service
department or commission, as the case may be,  forthwith  to  place  the
name  of  such  employee upon a preferred list, together with others who
may have been suspended or demoted from the same or similar positions in
the same jurisdictional class, and to certify such list, as  hereinafter
provided, for filling vacancies in the same jurisdictional class; first,
in  the  same  or  similar  position; second, in any position in a lower
grade in line of promotion; and third, in any comparable position.  Such
preferred  list  shall  be  certified  for filling a vacancy in any such
position before certification is made from any other list,  including  a
promotion  eligible  list,  notwithstanding  the  fact  that none of the
persons on such preferred list was suspended  from  or  demoted  in  the
department or suspension and demotion unit in which such vacancy exists.
No  other name shall be certified from any other list for any such posi-
tion until such preferred list is exhausted. The eligibility  for  rein-
statement  of  a  person  whose  name appears on any such preferred list
shall not continue for a period longer than four years from the date  of
separation  or  demotion.    AN  EMPLOYEE  WHOSE  NAME WAS PLACED ON THE
PREFERRED LIST AND AT THE TIME OF SUCH PLACEMENT WAS ON ACTIVE DUTY WITH
THE ARMED FORCES OF THE UNITED STATES, AS PURSUANT TO TITLE  TEN,  FOUR-
TEEN  OR THIRTY-TWO OF THE UNITED STATES CODE, SHALL NOT BE ELIGIBLE FOR
EMPLOYMENT REINSTATEMENT FOR A PERIOD LONGER THAN FOUR YEARS  AFTER  THE
DATE OF TERMINATION OF MILITARY DUTY.
  S  3.  The  civil service law is amended by adding a new section 88 to
read as follows:
  S 88. PROHIBITION  AGAINST  DISCRIMINATION  AGAINST  PUBLIC  EMPLOYEES
SERVING  IN THE ARMED FORCES. NO PUBLIC EMPLOYER, AS DEFINED IN SUBDIVI-
SION SIX OF SECTION TWO HUNDRED ONE OF THIS CHAPTER, SHALL DENY  EMPLOY-
MENT,  RE-EMPLOYMENT  OR  ANY  BENEFIT  OF  EMPLOYMENT  TO ANY PERSON OR
EMPLOYEE BASED ON PROSPECTIVE, CURRENT OR PAST  ENLISTMENT,  APPOINTMENT
OR COMMISSION WITH THE ARMED FORCES OF THE UNITED STATES. SUCH PERSON OR
EMPLOYEE  SHALL  BE  AFFORDED  FULL ENFORCEMENT RIGHTS UNDER THE LAWS OF
THIS STATE AND OF THE UNITED STATES,  INCLUDING  THE  FEDERAL  UNIFORMED
SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994.
  S 4. This act shall take effect immediately.

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