39-3-1 - Public officers and employees in military service -- Not to be prejudiced thereby -- Refusal to reinstate -- Procedure -- Motion -- Hearing and determination.
39-3-1. Public officers and employees in military service -- Not to be prejudicedthereby -- Refusal to reinstate -- Procedure -- Motion -- Hearing and determination.
(1) A public employee, public officer, or legislative employee, as defined in Section67-16-3, who enters active service in any branch of the armed forces of this state or of the UnitedStates shall be granted a leave of absence during that service.
(2) (a) A person entitled to a leave of absence under this section shall be restored to thesame position, or to a position equivalent to the same position, which the person held immediatelyprior to the commencement of active military service.
(b) A request for restoration of employment under this section must be submitted within40 days after release from active service.
(c) Restoration of employment shall be made within 20 days after submission of therequest to the employer.
(d) A person returning from active military service may not, without cause, be dischargedor subjected to reduction of compensation for a period of one year following a return toemployment under this section.
(3) A person returning to employment under this section:
(a) shall retain all personal, sick, and other leave to which the person was entitledimmediately prior to the commencement of active military service;
(b) shall receive and earn benefits and compensation at a level not less than that to whichthe person would have been entitled had the officer or employee not been absent due to activemilitary service; and
(c) may not be prejudiced, by the preservice employer or that employer's successor ininterest, as to employment, appointment, reappointment, reemployment, or promotion by reasonof the employee's active military service.
(4) (a) No public employee, public officer, or legislative employee may be required toresign from, vacate, or forfeit a governmental office or position as a consequence of entering intoactive military service.
(b) A person in active military service is not considered to be holding an office or positionof trust or employment under the United States government for purposes of determining whetherthat person is disqualified or prohibited from retaining a position or serving as a public employee,public officer, or legislative employee.
(c) Nothing in this section shall serve to extend a period of employment or term of officebeyond that to which the affected person was elected or appointed. A person who is a legislatoror public officer for a specific term by virtue of election or appointment is entitled to a leave ofabsence under this section for a period not to exceed the applicable term.
(5) A person denied restoration of employment or benefits given under this section maypetition the district court of the county in which the person resides, or in which the denial occurs,to require the public employer to comply with the provisions of this section without delay. Feesor court costs may not be assessed against the petitioner. The court shall order a speedy hearingin the case and advance it on the calendar so far as reasonably possible. If the court determinesthat the petitioner is entitled to relief, the court shall order all appropriate relief, to includecompensation for loss of wages and benefits and an award of attorneys' fees and costs.
Repealed and Re-enacted by Chapter 65, 1991 General Session