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Tuesday, September 24, 2013

Benefits available to State employees and employees of a political subdivision of the State ordered to military service


Benefits available to State employees and employees of a political subdivision of the State ordered to military service
§§242 and 243 of New York State’s Military Law

Ronald Miller, Esq., in an item posted in CCH’s Blog Employment Law Daily,* reports that a “city was denied summary judgment against an employee’s claim that it refused to reemploy her as a building custodian following her return from active duty with the National Guard (Sanderson v City of Farmington Hills, EDMich, September 17, 2013).”

Mr. Miller commented that: “A federal district court in Michigan rejected the city’s contention that the employee’s failure to report to work as requested, or to submit an application for reemployment, precluded her claim. Moreover, the court determined that the requirement of 38 USC Sec. 4311, that an employee show discrimination based on military service, was not triggered because she was never reemployed.”

§§242 and 243 of New York State’s Military Law grants certain rights to public officers and employees ordered to military duty.

§242 sets out the rights of public officers and employees absent on military duty as members of the organized militia or of reserve forces or reserve components of the armed forces of the United States. §243 addresses the rights of a public officer or employee while on ordered military service and his or her rights to reinstatement following his or her release from such ordered military service.

Essentially every public officer or employee is entitled to absent himself or herself for ordered military service** and is deemed to have a leave of absence from his or her duties or service as such public officer or employee while engaged in the performance of ordered military duty and while going to and returning from such duty.

As to reinstatement to his or her position, §243.2, in pertinent part, provides “Such public employee shall be reinstated to his position as soon as possible provided he [or she] makes application for such reinstatement within ninety days after the termination of his [or her] military duty, or at any time during his [or her] terminal leave. Thereafter, he [or she] may be so reinstated, at any time after such ninety-day period and within one year after the termination of his [or her] military duty, in the discretion of the appointing officer or body.”

§§242 and 243 also provide other benefits to officers and employees absent on military leave such as "pay for military duty;" the ability to elect to contribute to his or her pension or retirement system while on military duty; protecting his or her status on an eligible list, crediting military service towards completing probationary service requirements and rights related to placement on special military lists and military "reemployment lists" under certain circumstances.
* The full text of Mr. Miller’s item is posted on the Internet at:

** N.B. §243.1(b) requires police officers to obtain the prior consent of their public employer before absenting themselves from their position for military service in order to be eligible for certain benefits.
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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