The Florida Legislature and Gov. Charlie Crist have given members of the uniformed services—and especially National Guard members—some new and improved employment rights under the Florida Military Affairs Act.
They come in the form of amendments to Chapter 250 of the Florida Statutes, which includes the Florida Uniformed Servicemembers Protection Act.
(For information on new rights for employees with family members who serve in the military, see Military .) : DOL regs spell out employee rights
First, Section 250.82 of the Florida Statutes has been amended to better clarify and give notice that Florida state courts, to the extent permitted by federal law, have concurrent jurisdiction with federal courts to enforce all causes of action arising under federal law and may award the remedies allowed by those laws. That includes the federal Uniformed Services Employment and Reemployment Rights Act (USERRA).
Additional employer penalties
A new provision was adopted in the latest Florida legislative session—designated as Section 250.905 of the Florida Statutes—to put teeth in the protections afforded the uniformed service members and National Guard members.
Effective July 2009, courts now have authority to award a civil penalty of $1,000 for each violation of any of the protections afforded under the Military Affairs Act. In addition, the $1,000 civil penalty also applies for each violation of any federal law providing protections to service members.
This civil penalty can be in addition to any other relief or penalty provided by state or federal law.
More protections for National Guard members
Employers especially need to take note of the newly amended Section 250.482 of the Florida Statutes. This law has been substantially changed to provide National Guard members more protections from being penalized by any employer for their service under orders, pursuant to the Military Affairs Act, to state active duty.
Under Section 250.482(1), “a private or public employer, or an employing or appointing authority of this state, ... may not discharge, reprimand, or in any other way penalize [a National Guard member] because of his or her absence by reason of state active duty.”
Re-employment, seniority rights for Guard members
Along with extending to National Guard members the right to re-employment afforded to service members under USERRA, Section 250.482 provides the following entitlements:
- Maintenance of the member’s seniority at his or her place of employment as of the date of the commencement of the state active duty and any other rights and benefits due the member as a result of such seniority
- An award of any additional seniority that the member would have attained if the member had remained continuously employed and the rights and benefits due the member as a result of such seniority
- Exemption from being discharged from employment for a period of one year after the date the member returns to work, except for cause.
The National Guard member, however, must promptly notify the employer of his or her intent to return to work. The statute does not specify a definitive period for giving such notice and does not define “promptly notify.”
Nevertheless, an employer is not required to re-employ a National Guard member if:
- The employer’s circumstances have so changed as to make employment impossible or unreasonable.
- Employment would impose an undue hardship on the employer.
- The employment for the previous position held by the National Guard member was for a brief, nonrecurrent period, and there is no reasonable expectation it would continue indefinitely or for a significant period.
- The employer had legally sufficient cause to discharge the member at the time the member left for state active duty.
Under the statute, the employer has the burden of proving any of those four reasons for not re-employing the service member.
It also does not allow the employer to apply the employee’s accrued vacation or other accrued paid leave to the time away on active duty, unless the member specifically requests that such paid leave be used and paid.
Damages, penalties, fees
Employers need to become familiar with these new laws and others that protect service members and National Guard members, because the statutes provide a civil cause of action that can be brought by the member against an employer that violates these laws.
A service member who wins a lawsuit concerning these new rights can recover damages, civil penalties and attorneys’ fees and costs.
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