Chapter 11 - Military Service Member Protections
CHAPTER 11 - MILITARY SERVICE MEMBER PROTECTIONS
ARTICLE 1 - MILITARY SERVICE RELIEF ACT
19-11-101. Title.
As used in this article, "this article"means W.S. 19-11-101 through 19-11-124.
19-11-102. Purpose.
(a) In order to provide for, strengthen and expedite thenational security under conditions which threaten the peace and security of theUnited States and to enable those citizens of this state who perform service inthe uniformed services to more successfully devote their entire energy to theneeds of the nation and state, provision is hereby made to provide reemploymentrights and other benefits for persons who perform service in the uniformedservices of the United States. It is herein declared to be the policy of thestate of Wyoming that its citizens who serve their country and state and wholeave their employment, homes and education shall not be penalized noreconomically disadvantaged because of such service.
(b) The provisions of this article shall be liberally construedfor the benefit of those called to serve in the federal service of the UnitedStates or in active state service. The purpose of this article is to preventmembers from being disadvantaged and to prohibit discrimination against personsbecause of their uniformed service when they return to civilian life. It isthe sense of the legislature that the state of Wyoming should be a modelemployer in carrying out the provisions of this article.
(c) The provisions of this article are intended to besupplemental to any rights that persons called to military service have underany applicable federal statutes, including the Servicemembers Civil Relief Act,Public Law 108-189, the Uniformed Services Employment and Reemployment RightsAct, 38 U.S.C. 4301 et seq., and under any other applicable laws of this state.
(d) Nothing in this article shall supersede, nullify ordiminish any federal or state law, including any local law or ordinance,contract, agreement, policy, plan, practice or other matter that establishes aright or benefit that is more beneficial to, or is in addition to a right orbenefit provided for such person in this article.
(e) This article supersedes any local law or ordinance,contract, agreement, policy, plan, practice or other matter that reduces,limits or eliminates in any manner any right or benefit provided by thisarticle, including the establishment of additional prerequisites to theexercise of any such right or the receipt of any such benefit.
19-11-103. Definitions.
(a) As used in this article, unless the context clearlyrequires otherwise:
(i) "Appointed official" means a person holding anappointed position or office with any department, board, commission or agencyof the state, or of any political subdivision or municipal corporation, whenthe office or position is established by the constitution or laws of thisstate;
(ii) "Benefit, benefit of employment, rights andbenefits" means any advantage, profit, privilege, gain, status, account orinterest other than wages or salary for work performed that accompanies byreason of an employment contract or agreement or an employer policy, plan orpractice and includes rights and benefits under a pension plan, a health plan,an employee stock ownership plan, insurance coverage and awards, bonuses,severance pay, supplemental unemployment benefits, vacations and theopportunity to select work hours or location of employment;
(iii) "Compensation" means normal or regular base pay,but does not include overtime, per diem, differential pay or any otherallowance for other expense, and for firemen, policemen and deputy sheriffsshall also include supplemental pay;
(iv) "Elected official" means a person holding anoffice in a governmental entity of the state or any of its politicalsubdivisions which is filled by the vote of the appropriate electorate;
(v) "Employee" means any person employed by anyprivate or public employer, including an elected or appointed official;
(vi) "Employment" means a position as an employee withany private or public employer, including commencement of employment, by anyactions in furtherance of employment, once an offer has been extended by anemployer and accepted by an employee. Service in the military service greaterthan thirty (30) days shall not be considered secondary employment;
(vii) "Public retirement system" means any publicretirement or pension system, fund or plan maintained primarily for officersand employees of the state of Wyoming or of any political subdivision thereof,or any district, board, commission or other agency of either, or of any othersuch public entity;
(viii) "Reasonable efforts", in the case of actionsrequired of an employer under this article, means actions, including trainingprovided by an employer, that do not place an undue hardship on the employer;
(ix) "Service in the uniformed services" means theperformance of duty on a voluntary or involuntary basis in a uniformed serviceunder competent authority and includes active duty, active duty for training,initial active duty for training, inactive duty training, full-time nationalguard duty, a period for which a person is absent from a position of employmentfor the purpose of an examination to determine the fitness of the person toperform any such duty and active state service by members of the national guardwho are activated pursuant to a call of the governor as provided for by law;
(x) "Undue hardship", in the case of actions taken byan employer, requires consideration of the following factors:
(A) Actions requiring significant difficulty or expense, whenconsidered in light of the nature and cost of the actions needed under thisarticle;
(B) The overall financial resources of the facility orfacilities involved in the provision of the action;
(C) The number of persons employed at such facility;
(D) The effect on expenses and resources or the impactotherwise of such action upon the operation of the facility;
(E) The overall financial resources of the employer;
(F) The overall size of the business of an employer withrespect to the number of its employees;
(G) The number, type and location of its facilities;
(H) The type of operation or operations of the employer,including the composition, structure and functions of the work force of suchemployer; and
(J) The geographic separateness, administrative or fiscalrelationship of the facility or facilities in question to the employer.
(xi) "Uniformed services" means the armed forces, thearmy national guard and the air national guard, the commissioned corps of thepublic health service and any other category of persons designated by thepresident in time of war or emergency;
(xii) "This act" means W.S. 19-11-101 through19-11-124.
19-11-104. Discrimination prohibited.
(a) A person who is a member of, applies to be a member of,performs, has performed, applies to perform or has an obligation to performservice in an uniformed service shall not be denied initial employment,reemployment, retention in employment, promotion or any benefit of employmentby an employer on the basis of that membership, application for membership,performance of service application for service or obligation.
(b) An employer shall be considered to have denied a personinitial employment, reemployment, retention in employment, promotion or abenefit of employment in violation of this section if the person's membership,application for membership, service, application for service or obligation forservice in the uniformed services is a motivating factor in the employer'saction, unless the employer can prove that the action would have been taken inthe absence of such membership, application for membership, performance ofservice, application for service or obligation.
(c) An employer may not discriminate in employment against ortake an adverse employment action against any person because such person hastaken an action to endorse a protection afforded any person under this act, hastestified or otherwise made any statement in or in connection with anyproceeding under this act, has assisted or otherwise participated in aninvestigation under this act or has exercised a right provided for in thisact. The prohibition provided for in this subsection shall apply with respectto a person regardless of whether that person has performed service in theuniformed services and shall apply to any position of employment, including aposition that is for a brief, nonrecurrent period and there is no reasonableexpectation that such employment will continue indefinitely or for asignificant period.
19-11-105. Awarding of costs and fees.
(a) In any administrative or court proceeding which is broughtby or against an employer or prior employer in connection with a claim underW.S. 19-11-104 or 19-11-111, the prevailing member may be awarded a judgment ora settlement against an employer or prior employer for:
(i) Reasonable administrative costs incurred in connection withsuch administrative proceeding within the employer; and
(ii) Reasonable litigation costs incurred in connection withsuch administrative proceeding within the employer or prior employer.
(b) A judgment for reasonable litigation costs shall not beawarded under subsection (a) of this section in any court proceeding unless thecourt determines that the prevailing party has exhausted the administrativeremedies available to such party within the employer or prior employer.
(c) An award under subsection (a) of this section shall be madeonly for reasonable litigation and administrative costs which are allocable tothe employer or prior employer and not to any other party.
(d) No award for reasonable litigation and administrative costsmay be made under subsection (a) of this section with respect to any portion ofthe administrative or court proceeding during which the prevailing party hasunreasonably protracted such proceeding.
(e) For purposes of this section:
(i) "Administrative proceeding" means anyadministrative procedure or other action before the employer or formeremployer;
(ii) "Court proceedings" means any civil actionbrought in a court within the state of Wyoming;
(iii) "Position of the employer or former employer"means the position taken by the employer or former employer in anadministrative or judicial proceeding;
(iv) "Prevailing party" means any current or formermember of the Wyoming national guard in any proceeding to which subsection (a)of this section applies who establishes that the position of the employer orformer employer in the proceeding was not substantially justified, and:
(A) Has substantially prevailed with respect to the action incontroversy; or
(B) Has substantially prevailed with respect to the mostsignificant issue or sets of issues presented.
(v) "Reasonable administrative costs" means anyadministrative fees or similar charges imposed by the employer or formeremployer and expenses, costs and fees described as reasonable litigation costsidentified in paragraph (vi) of this subsection;
(vi) "Reasonable litigation costs" includes reasonablecourt costs and, based on prevailing market rates for the kind or quality ofservices furnished:
(A) The reasonable expenses of expert witnesses in connectionwith a court proceeding, except that no expert witness shall be compensated ata rate in excess of the highest rate of compensation for expert witnesses paidby the employer or prior employer if the employer or prior employer utilizedexpert witnesses;
(B) The reasonable cost of any study, analysis, report orproject which is found by the court to be necessary for the preparation of theparty's case; and
(C) Reasonable attorney's fees, except that such fees shall notbe in excess of seventy-five dollars ($75.00) per hour unless the courtdetermines that an increase in the cost of living or a special factor, such aslimited availability of qualified attorneys for such proceeding, justifies ahigher rate.
(f) An award for reasonable litigation costs shall be payableunder this section in the same manner as such an award by a district court.
(g) For purposes of this section, in the case of multipleactions which could have been joined or consolidated, such actions shall betreated as one (1) court proceeding regardless of whether such joinder orconsolidation actually occurs, unless the court in which such action is broughtdetermines, in its discretion, that it would be inappropriate to treat suchactions or cases as joined or consolidated.
(h) An order granting or denying, in whole or part, an awardfor reasonable litigation or administrative costs under subsection (a) of thissection in a court proceeding may be incorporated as part of the decision orjudgment in the court proceeding and shall be subject to appeal in the samemanner as the decision or judgment. A decision granting or denying, in wholeor in part, an award for reasonable administrative costs under subsection (a)of this section in an administrative proceeding by the employer or formeremployer shall be subject to appeal by bringing the cause of action to thedistrict court.
19-11-106. Compensation.
(a) Any private or public employer in this state is herebyauthorized to pay compensation to any employee who leaves employment to performservice in the uniformed services. If the employer elects to pay thecompensation, it shall be paid on a uniform basis to all such employees of thatemployer.
(b) The payment of compensation subsequent to the employee'srelease from service in the uniformed services and upon reemployment with hisformer employer shall be governed by the provisions of this act.
(c) The payment of compensation and benefits to electedofficials shall be paid in accordance with the provisions of Wyomingconstitution and the laws of this state.
19-11-107. Leave status.
(a) Any employee who leaves employment in order to performservice in the uniformed services shall be treated as being on military leaveof absence during the period of service in the uniformed services, providedthat he applies for reemployment in accordance with this act.
(b) The employee, at his option, may use any amount orcombination of his accrued annual leave, paid military leave, vacation orcompensatory leave standing to his credit during the period of service in theuniformed services.
(c) The employee shall continue to accrue sick leave, annualleave, vacation leave or military leave on the same basis as he would haveaccrued such leave during the period of service in the uniformed services.
(d) No employer may deduct, from the compensation paid to anemployee in service in the uniformed services, any cost of replacing theemployee during said employee's service in the uniformed services.
19-11-108. Leave of absence for state, city or county officers andemployees; training programs.
(a) Any member of the Wyoming national guard or United Statesmilitary forces reserve who is an officer or employee of this state or anypolitical subdivision, municipal corporation or any public agency or entity ofthe state, including community colleges, shall be given a military leave ofabsence with pay at the regular salary or wage which the employee normallyreceives, not to exceed fifteen (15) calendar days in any one (1) calendar yearto perform service in the uniformed services in addition to any other leave orvacation time to which the person is otherwise entitled.
(b) Subject to the conditions prescribed in paragraphs (c)(i)through (v) of this section, any officer or employee of the state or anypolitical subdivision, municipal corporation or public agency of the state whohas been employed for one (1) year and who is a member of the national guard orany other component of the military forces of the state, a member of thereserve forces of the United States or who is inducted into the militaryservice of the United States, is entitled to leave of absence from his publicoffice or employment without pay but without loss of seniority, status,efficiency rating, vacation, sick leave or other benefits while he is engagedin active military training or service ordered or authorized by properauthority pursuant to law exceeding fifteen (15) days in any calendar year.Such leave is in addition to any other military leave or vacation time to whichthe officer or employee may be entitled by law if the required military serviceis satisfactorily performed, which is presumed unless the contrary isestablished.
(c) Upon completion of service as provided by subsection (b) ofthis section, the officer or employee shall be reinstated to the publicposition held at the time of entry into service or a position of likeseniority, status and pay, if available, upon the following conditions:
(i) The position has not been abolished or the term thereof, iflimited, has not expired;
(ii) He is not physically or mentally disabled from performingthe duties of the position;
(iii) He makes written application for reinstatement to theappointing authority within thirty (30) days following release from militaryservice or within ninety (90) days after discharge from hospitalization ormedical treatment which immediately follows the termination of, and resultsfrom, the service but not to exceed one (1) year and ninety (90) days aftertermination of service notwithstanding hospitalization or medical treatment;
(iv) He submits an honorable discharge or other release byproper authority indicating his military service was satisfactory; and
(v) The military service does not exceed five (5) years plusany period of additional service imposed by law.
(d) Upon reinstatement, the officer or employee has the samerights with respect to accrued and future seniority, status, efficiency rating,vacation, sick leave and other benefits as if he had been actually employedduring the time of leave. During the absence, the state of Wyoming or apolitical subdivision shall discontinue its share of payments for socialsecurity, insurance of any type and state retirement unless the employee electsto contribute to the state retirement plan during his absence and the job oroffice remains open pending his return in which case the state of Wyoming or apolitical subdivision will likewise contribute its share. No officer oremployee reinstated shall be removed or discharged within one (1) year thereafterexcept for cause, after notice and hearing, but this shall not operate toextend a term of service or office limited by law.
(e) This section shall be liberally construed in favor of themember of the Wyoming national guard or United States military forces who is anofficer or employee of this state or any political subdivision, municipalcorporation or any public agency of the state.
19-11-109. Life and health and accident insurance.
(a) The provisions of this section shall be applicable to any grouplife insurance, group insurance, family group, blanket and franchise health andaccident insurance and health care services plan provided by any private orpublic employer in this state.
(b) Any employee shall have the right to maintain the insuranceor plan coverage enumerated in subsection (a) of this section by furnishing hisemployer with sums equal to that which would have been deducted from hiscompensation for such coverage. Upon timely receipt of the employee'scontributions required by the insurance policy or plan provisions, the employershall provide the applicable insurer or health maintenance organization withthose contributions plus an amount equal to what the employer would havecontributed during the period of service in the uniformed services. Theemployee shall notify his employer of his election to continue insurance orplan coverage at the time he enters service in the uniformed services.
(c) Family members or dependent children of an employee who arecovered by any insurance policy or plan enumerated in subsection (a) of thissection who are subsequently called to service in the uniformed services shallcontinue to be considered family members or dependents under the provisions ofthe policy or plan without any lapse of coverage, provided that all requiredcontributions are paid in accordance with the policy or plan provisions.
(d) Any employee who leaves employment to perform service inthe uniformed services and who reapplies for coverage after release shall bereinstated, including all of his family members and dependents previouslycovered, with the group insurance program or medical and health care coveragewithout any clause or restriction because of a preexisting condition.
(e) This section shall not be construed to invalidate theprovision of any life insurance policy excluding or restricting coverage in theevent of death.
(f) This section shall not invalidate any legitimate exclusionsto coverage of any policy or plan enumerated in subsection (a) of this section.
19-11-110. Worker's compensation benefits; supplementary earnings;voluntary suspension.
(a) Any employee receiving supplemental earnings benefitspursuant to the provisions of the Worker's Compensation Act who is called toservice in the uniformed services, is found to be medically deployablemilitarily and is subsequently deployed, shall, at his option, be allowed tosuspend any such benefit payments for which he would otherwise be eligibleduring his period of service in the uniformed services.
(b) The director of the office of workers' compensation of thedepartment of employment shall, by rule, prescribe the method by which suchemployee may request the suspension of benefits.
(c) The employee shall be restored to the same benefits hewould have received had he not been called to duty in the uniformed services,provided he makes an application to resume such benefits after his release fromservice in the uniformed services or release from hospitalization incidental tohis service in the uniformed services.
19-11-111. Right of reinstatement to former employment.
(a) Any person who is absent from a position of employment byreason of service in the uniformed services shall be entitled to thereemployment rights and benefits and other employment benefits of this articlewithin ten (10) days of application for reemployment if all of the followingconditions are met:
(i) The person or the authorized officer of the uniformedservice in which the service is performed has given advance written or verbalnotice of service to the person's employer;
(ii) The cumulative length of the absence and of all previousabsences from a position of employment with that employer by reason of servicein the uniformed services does not exceed five (5) years;
(iii) Except as provided in subsection (f) of this section theperson reports to, or submits an application for reemployment to, the employerin accordance with subsection (e) of this section;
(iv) If the person has been discharged from the uniformedservices, the discharge was an honorable discharge or a discharge underhonorable conditions.
(b) Notice is not required under subsection (a) of this sectionif the giving of the notice is precluded by military necessity or, under all ofthe relevant circumstances, the giving of the notice is otherwise impossible orunreasonable. A determination of military necessity for the purposes of thissubsection shall be made pursuant to regulations prescribed by the uniformedservices and shall not be subject to judicial review.
(c) Subsection (a) of this section shall apply to a person whois absent from a position of employment by reason of service in the uniformedservices if the person's cumulative period of service in the uniformed serviceswith respect to the employer relationship for which a person seeks reemploymentdoes not exceed five (5) years, except that the period of service shall notinclude any service:
(i) That is required, beyond five (5) years, to complete aninitial period of obligated service;
(ii) During which the person was unable to obtain ordersreleasing the person from a period of service in the uniformed services beforethe expiration of the five (5) year period and the inability was through nofault of the person;
(iii) Performed to fulfill additional training requirementsdetermined to be necessary for professional development or for completion ofskill training or retraining; or
(iv) Performed by a member of a uniformed service who has been:
(A) Ordered to or retained on active duty in time of war ornational or state emergency;
(B) Ordered to or retained on active duty other than fortraining under any provision of law during a war or during a national emergencydeclared by the president or the congress or emergency declared by thegovernor; or
(C) Ordered to active duty in support of a critical mission orrequirement of the uniformed services.
(d) An employer is not required to reemploy a person under thissection if the employer demonstrates that:
(i) The employer's circumstances have so changed as to makereemployment impossible or unreasonable;
(ii) The reemployment would impose an undue hardship on theemployer; and
(iii) The employment from which the person leaves to serve in theuniformed services is for a brief, nonrecurrent period and there is noreasonable expectation that such employment will continue indefinitely or for asignificant period.
(e) Subject to subsection (f) of this section, a personreferred to in subsection (a) of this section shall, upon the completion of aperiod of service in the uniformed services, notify the employer referred to insubsection (a) of this section of the person's intent to return to a positionof employment with the employer as follows:
(i) In the case of a person whose period of service in theuniformed services was less than thirty-one (31) days, by reporting to theemployer in the following manner:
(A) Not later than the beginning of the first full regularlyscheduled work period on the first full calendar day following the completionof the period of service and the expiration of eight (8) hours after a periodallowing for the safe transportation of the person from the place of thatservice to the person's residence;
(B) As soon as possible after the expiration of the eight (8)hour period referred to in subparagraph (A) of this paragraph, if reportingwithin that period is impossible or unreasonable through no fault of theperson.
(ii) In the case of a person who is absent from a position ofemployment for a period of any length for the purposes of an examination todetermine the person's fitness to perform service in the uniformed services, byreporting in the manner and time referred to in paragraph (i) of thissubsection;
(iii) In the case of a person whose period of service in theuniformed services was for more than thirty (30) days but less than one hundredeighty-one (181) days, by submitting an application for reemployment with theemployer not later than fourteen (14) days after the completion of the period ofservice or if submitting such application within such period is impossible orunreasonable through no fault of the person, the next first full calendar daywhen submission of such application becomes possible; or
(iv) In the case of a person whose period of service in theuniformed services was for more than one hundred eighty-one (181) days, bysubmitting an application for reemployment with the employer not later thanninety (90) days after the completion of the period of service.
(f) A person who is hospitalized for, or convalescing from, anillness or injury incurred in, or aggravated during, the performance of servicein the uniformed service, shall, at the end of the period that is necessary forthe person to recover from such illness or injury, report to the person'semployer, in the case of a person described in paragraphs (e)(i) and (ii) ofthis section or submit an application for reemployment with his employer, inthe case of a person described in paragraphs (e)(iii) and (iv) of this section. Except as provided in paragraph (e)(ii) of this section, such period ofrecovery may not exceed two (2) years. The two (2) years shall be extended bythe minimum time required to accommodate the circumstances beyond such person'scontrol which makes reporting within the period specified in paragraph (e)(i)of this section impossible or unreasonable. A person who fails to report orapply for employment or reemployment within the appropriate period specified insubsections (e) and (f) of this section shall not automatically forfeit hisentitlement to the rights and benefits referred to in subsection (a) of thissection but shall be subject to the conduct, rules, established policy andgeneral practices of the employer pertaining to explanations and disciplinewith respect to absence from scheduled work.
(g) A person who submits an application for reemployment inaccordance with paragraph (e)(iii) or (iv) of this section shall provide, uponrequest by the person's employer, to the person's employer documentation toestablish the following:
(i) The person's application is timely;
(ii) The person has not exceeded the service limitations setforth in paragraph (a)(ii) of this section, except as permitted undersubsection (c) of this section; and
(iii) If the person has been discharged from the uniformedservice, the discharge was an honorable discharge or a discharge underhonorable conditions.
(h) Documentation of any matter referred to in subsection (g)of this section that satisfies regulations prescribed by the adjutant generalshall satisfy the documentation requirements in subsection (g) of this section.Failure to provide documentation that satisfies regulations prescribed by theadjutant general shall not be a basis for denying reemployment in accordancewith the provisions of this section if the failure occurs because thedocumentation does not exist or is not readily available at the time of therequest of the employer. If, after reemployment, documentation becomesavailable that establishes that the person does not meet one (1) or more of therequirements referred to in paragraph (g)(i), (ii) or (iii) of this section,the employer of the person may terminate the employment of the person and theprovision of any rights or benefits afforded the person under this section. Anemployer who reemploys a person absent from a position of employment for morethan ninety (90) days may require that the person provide the employer with thedocumentation referred to in this subsection and subsection (g) of this sectionbefore beginning to treat the person as not having incurred a break in servicefor pension purposes. An employer may not delay or attempt to defeat areemployment obligation by demanding documentation that does not then exist oris not then readily available.
(j) The right of a person to reemployment under this sectionshall not entitle such person to retention, preference or displacement rightsover any person with a superior claim under the provisions of title 5, UnitedStates Code, relating to veterans and other preference eligibility.
(k) In any determination of a person's entitlement toprotection under this section, the timing, frequency and duration of theperson's training or service, or the nature of such training or service,including voluntary service, in the uniformed services, shall not be a basisfor denying protection under this section if the service does not exceed thelimitations set forth in subsection (c) of this section the notice requirementsestablished in paragraph (a)(i) of this subsection and the notificationrequirements established in subsection (e) of this section are met.
(m) Any employee, who applies for reemployment in accordancewith the provisions of this law, shall be entitled to complete any trainingprogram that was applicable to his former position of employment during hisperiod of service in the uniformed services.
(n) Any employee who is restored to or employed in a positionin accordance with the provisions of this section shall not be discharged fromsuch position without cause within one (1) year after such restoration orreemployment.
(o) Notwithstanding any provision of law to the contrary, anemployee shall be reinstated to his former position as a teacher immediatelyupon application and shall be entitled to receive that compensation which hewould have received if he would have been employed on a nine (9) month basisand had prorated his salary over twelve (12) months. The employee shall bereinstated prior to the end of the twelve (12) months.
(p) A person who is reemployed under this section is entitledto the seniority and other rights and benefits determined by seniority that theperson had on the date of the commencement of service in the uniformed servicesplus the additional seniority, rights and benefits that such person would haveattained if the person had remained continuously employed.
19-11-112. Retirement credit.
(a) Any employee who completes his service in the uniformedservices and applies for reemployment upon release from service in theuniformed services or discharge from hospitalization incidental to his servicein uniformed service shall be entitled to receive creditable service for suchperiod of service in the uniformed services toward vesting and computation ofbenefits in the retirement system, pension fund or employee benefit planapplicable to his employment, as provided for in this section.
(b) No employee shall receive more than a total of five (5)years of military service credit in the retirement system, pension fund oremployee benefit plan applicable to his employment credited under this section.
19-11-113. Contributions, payment during military service.
Any employee may, at his option, pay therequired employee contributions to the retirement system, pension fund oremployee benefit plan applicable to his employment during his period of servicein the uniformed services if the payment of contributions is permitted by theInternal Revenue Code. The employee shall timely furnish his employer withsums equal to that which would have been deducted from his compensation forretirement system coverage as required under the public retirement system oremployee benefit plan. Upon receipt the employer shall remit the employeecontributions to the applicable system or plan, including the employercontributions that would have been contributed on behalf of the employee. Theemployee shall notify his employer of his election to pay the required employeecontributions to the applicable system or plan at the time he enters service inthe uniformed services.
19-11-114. Employee pension benefit plans.
(a) Every private employer in this state who maintains adefined benefit plan as defined by 29 U.S.C. 1002(35) shall credit the employeewith his period of service in the uniformed services towards retirementeligibility and vesting under the plan, including the computation of anyretirement benefits due under the express terms of the plan, when the accruedbenefits due under the plan are derived from employer contributions to theplan. If the defined benefit plan provides benefits derived from employer andemployee contributions to the plan, the employee shall be credited with hisperiod of service in the uniformed services towards retirement eligibility andvesting under the plan, including the computation of any retirement benefitsdue under the express terms of the plan, provided that the employercontributions and the mandatory contributions of the employee are made to theplan.
(b) If any private employer maintains an individual accountplan or a defined contribution plan, as defined by 29 U.S.C. 1002(34), theemployee shall be credited with his period of service in the uniformed servicestowards retirement eligibility under the express terms of the plan upon paymentof the designated contributions to the plan and if such credit is permitted bythe Internal Revenue Code.
(c) An employee may be required to pay the employee cost, ifany, of any funded benefit continued pursuant to this section to the extentother employees on furlough or leave of absence are so required.
19-11-115. State retirement systems; payment of contributions;interest.
(a) Any employee who did not elect to make employeecontributions pursuant to W.S. 19-11-113 to the state retirement systemapplicable to his employment during his period of service in the uniformedservices shall be entitled to receive credit for his service in the uniformedservices toward establishing retirement eligibility and for computation ofbenefits upon payment into the system in an amount equal to the employeecontributions that would have been paid had the employee continued inemployment and not been called to service in the uniformed services, togetherwith interest thereon at the valuation interest rate of the system or plan ineffect at the time payment is made. The contributions shall be based on thesalary including any increases in compensation that the employee would havereceived had he remained in employment during the period of service in theuniformed services.
(b) Upon payment by the employee of the employee contributionsand interest as provided in subsection (a) of this section the employer shallpay to the retirement system an amount equal to the employer contributions thatthe employer would have paid to the retirement system had the employee remainedin service, together with interest thereon, at the valuation interest rate ineffect at the time payment is made. The contributions shall be based on thesalary the employee would have received during the period of service in theuniformed services, including any increases in compensation that the employeewould have received had he remained in employment during the period of servicein the uniformed services. The employer contributions and interest due to thesystem shall be paid within thirty (30) days after the employee has paid all ofthe contributions due to the system or fund.
(c) All employee contributions and interest due thereon made inpayment for service in the uniformed services credit in accordance withsubsection (a) of this section must be received by the system within five (5)years of his reemployment.
(d) Should the employee fail to make the required contributionswithin four (4) years, the credit shall only count toward determiningeligibility for retirement benefits. Any unpaid actuarial cost to theretirement system shall be borne by the employers through reflection in theemployer rate established by the state retirement system's actuarial committee.
(e) Notwithstanding any other requirements in W.S. 19-11-113 or19-11-114 or this section relating to payment of retirement contributions to apublic or private retirement system, employer and employee contributions forany public or private retirement or pension system plan, not to exceed fivethousand dollars ($5,000.00) per person per year, may be paid by the Wyomingadjutant general, if the payment is permitted by the Internal Revenue Code, forany person whose primary occupation is that of a first responder and who iscalled or ordered into the federal service of the United States under title 10of the United States Code.
(f) The provisions of subsection (e) of this section shall alsoapply to any Wyoming resident whose primary occupation is that of a firstresponder when that person is called or ordered into federal service with anational guard unit in any state in the United States. The adjutant generalshall promulgate rules and regulations to provide a method for application forpersons not serving in the Wyoming national guard.
(g) The adjutant general shall report annually, no later thanOctober 1, to the joint transportation, highways and military affairs interimcommittee. The report shall include the number of persons who qualified forthe contributions under subsections (e) and (f) of this section, a listing ofthe civilian classifications of the persons applying for the contributions andthe total amount expended for the contributions.
19-11-116. Payment of death and survivor benefits; state retirement.
(a) The employee's period of service in the uniformed servicesshall be counted as creditable service in the state retirement system in whichhe was a member for determining eligibility for death and survivor benefits andin the computation of benefits, provided that the following conditions aresatisfied:
(i) The beneficiary of the death or survivor benefits shallprovide payment of the unpaid portion of the contributions of the deceasedmember. The beneficiary may agree in writing to have the payment of the unpaidportion of the contributions of the deceased member deducted from the benefitsover a period not to exceed four (4) years. The beneficiary may pay, in thealternative, the actuarial cost of such additional credit in a lump sum priorto the distribution of benefits;
(ii) If there is more than one (1) beneficiary a writtenagreement to pay the unpaid contributions of the deceased member shall beunanimous. In the event that a recipient is a minor child the legal guardianof the minor child may express consent for the minor child;
(iii) The board of trustees of every state retirement systemshall adopt a written policy covering all beneficiaries' and survivors' rightsto pay the required contributions in order to have the employee's militaryservice computed in the computation of any death or survivor benefits payableunder the state retirement system.
(b) If all of the conditions of subsection (a) of this sectionare satisfied the employer shall pay the employer contributions in a mannerconsistent with this section.
(c) If the beneficiary of the death or survivor benefits of thedeceased member elects not to pay the employee contributions due the system onaccount for such service in the uniformed services credit, the computation ofdeath and survivor benefits shall be based on the actual service of the memberin the system prior to his call to service in the uniformed services. Thedeath or survivor benefits provided for herein shall be due and payable uponthe death of the member.
(d) If the application of any provision set forth in thissection results in an unpaid actuarial cost to the retirement system, it shallbe borne by the employers through reflection in the employer rate establishedby the state retirement system's actuarial committee.
19-11-117. Inapplicability to deferred retirement option plans; stateretirement.
The provisions of this article areinapplicable with respect to employees who are participants in a deferredretirement option plan.
19-11-118. License validity; renewals, suspension of fees.
The payment of any reinstatement orlicensing fee or the application for renewal of any license imposed by thestate or any public or governmental entity which the person who performsservice in the uniformed services validly holds at the time he enters servicein the uniformed services shall be suspended until ninety (90) days after hisrelease from service in the uniformed services or discharge fromhospitalization incidental to his service in the uniformed services, provided thatthe person complies with all of the licensing requirements including thepayment of fees before the expiration of ninety (90) days after his releasefrom service in the uniformed services or discharge from hospitalizationincidental to his service in the uniformed services. Any license covered bythis section which that person validly held at the time he entered service inthe uniformed services shall remain in force and effect until ninety (90) daysafter his release from service in the uniformed services, provided that thelicensing requirements are complied with, including the payment of anylicensing and renewal fees owed.
19-11-119. Professional and occupational licenses; renewal fees waived;educational requirements.
The person who performed service in theuniformed services shall be exempted from the payment of any reinstatement orlicensing renewal fee required by any profession or occupation governed bytitle 33 of the Wyoming statutes or by other law or ordinance applicable to anysuch person who performed service in the uniformed services during his periodof service in the uniformed services except those licensing or renewal feesowed for the year in which he is released from service in the uniformedservices or discharged from hospitalization incidental to his service in theuniformed services. The person who performed service in the uniformed servicesshall have ninety (90) days after his release from service in the uniformedservices or hospitalization incidental to his service in the uniformed servicesto pay the licensing or renewal fees then owed. The person who performedservice in the uniformed services shall be exempted from compliance with anycontinuing educational requirements applicable to such license during hisperiod of service in the uniformed services except those required for the yearin which he is released from service in the uniformed services or dischargedfrom hospitalization incidental to his service in the uniformed services. Theperson who performed service in the uniformed services shall complete suchrequirements within one hundred eighty (180) days from his release from servicein the uniformed services or discharge from hospitalization incidental to hisservice in the uniformed services. Any applicable license shall continue inforce and effect provided that both the renewal fees and the educationalrequirements are completed within the periods provided herein.
19-11-120. Academic penalties prohibited.
(a) No student member of any uniformed service of the UnitedStates shall have his education, including but not limited to colleges anduniversities, vocational or technical or trade schools or secondary educationalinstitutions, unnecessarily disrupted because of his service in the uniformedservices. No undue penalties shall be assessed because of his service in theuniformed services. No student shall forfeit, and shall be entitled toreimbursement for, any fees or education expenses if such student is orderedinto active state service for a period of more than thirty (30) consecutivedays or active federal service pursuant to a presidential call or mobilization.
(b) The enforcement of this section shall be reserved for theappropriate governing body having jurisdiction over the student and shallimplement the intent expressed herein.
19-11-121. District courts; jurisdiction; venue; preference docket.
(a) In the case of an action against the state, the districtcourt in which the state or any of its political subdivisions exercisesauthority or conducts its business shall have jurisdiction to hear actions toenforce the provisions of this article. In the case of a private employer, theappropriate district court is the district court for any district in which theperson in the uniformed services is employed.
(b) The district courts of the state shall have jurisdictionupon the filing of a complaint, motion, petition or other appropriate pleadingby or on behalf of the person claiming a right or benefit under this article torequire the employer to:
(i) Comply with the provisions of this article;
(ii) Compensate the person for any loss of wages or benefitssuffered by reason of such employer's failure to comply with the provisions ofthis article;
(iii) Pay the person an amount equal to the amount of lost wagesor benefits as liquidated damages if the court determines that the employer'sfailure to comply with the provisions of this article was willful.
(c) Any compensation awarded under paragraphs (b)(i), (ii) and(iii) of this section shall be in addition to and shall not diminish any of theother rights and benefits provided for in this article.
(d) All district and appellate courts shall give preference inscheduling such actions upon the motion of any person in the uniformedservices, or his attorney, who presents certification that the person hasperformed service in the uniformed services or is in service in the uniformedservices.
19-11-122. Servicemembers Civil Relief Act; application to nationalguard; penalty for violation of rights afforded to guard members; enforcement;preferences.
(a) Members of the Wyoming national guard ordered to activestate service by the state or federal government for a period of more thanthirty (30) consecutive days shall have all protections afforded to persons inthe military service of the United States under the Servicemembers Civil ReliefAct, Public Law 108-189. Except as provided in subsection (b) of this section,nothing in this subsection shall be construed to authorize the imposition ofany penalty under the Servicemembers Civil Relief Act for violation of theprotections afforded to members of the Wyoming national guard pursuant to thissubsection. As used in this subsection, "active state service" meansas defined in W.S. 19-7-101(a)(v).
(b) Any person who knowingly violates the protections providedto members of the Wyoming national guard pursuant to subsection (a) of thissection shall be guilty of a misdemeanor punishable by a fine not to exceed onethousand dollars ($1,000.00).
(c) The protections afforded to members of the Wyoming nationalguard pursuant to subsection (a) of this section may serve as the basis for anaction or as a defense. The courts of this state that would otherwise havejurisdiction over a case shall have jurisdiction over proceedings involving theServicemembers Civil Relief Act and the Uniformed Services Employment andReemployment Rights Act, which shall be governed by the rules applicable toordinary proceedings.
(d) The courts shall give preference in scheduling suchproceedings, upon the motion of any person in the uniformed services, or theperson's attorney, who presents certification that the person has performedservice in the uniformed services or is in service in the uniformed services.
19-11-123. Award of attorney fees.
In any proceeding employed to enforce anyof the provisions of this act, the court shall award reasonable litigationexpenses including reasonable attorney's fees.
19-11-124. Vacancies in elected office.
No vacancy in the office of an electedofficial shall be deemed to have occurred by reason of his absence when theofficial is called to service in the uniformed services. No change in theresidence of an elected official is deemed to have occurred by reason of hisservice in the uniformed services.
ARTICLE 2 - ACKNOWLEDGMENT OF INSTRUMENTS
19-11-201. Power of attorney.
Ifany person who performs service in the uniformed services as principal executesa power of attorney designating an agent to act on his behalf in conformitywith the law of Wyoming, such power of attorney is deemed legally sufficientand enforceable as to the powers granted the agent therein and shall be honoredby any person, corporation or institution to whom the power of attorney ispresented.
19-11-202. Acknowledgment of instrument by members of armed forces andtheir dependents before commissioned officer; form of certificate.
Inaddition to the acknowledgment of instruments in the manner and form otherwiseauthorized by law, persons who perform service in the uniformed services ortheir dependents, wherever located, may acknowledge the instruments before anycommissioned officer who performs service in the uniformed services with therank of second lieutenant or higher in the army, air force or marine corps, orensign or higher in the navy or coast guard. The instrument is not invalid forfailure to state therein the place of execution or acknowledgment. Noauthentication of the officer's certificate of acknowledgment is required, butthe officer taking the acknowledgment shall endorse thereon or attach thereto acertificate substantially in the following form:
On this .... dayof ...., (year), before me, ...., the undersigned officer, personally appeared...., Serial No. (If any) ...., known to me (or satisfactorily proven) to beperforming service in the uniformed services (A dependent of ...., Serial No.(If any) ...., a person performing service in the uniformed services) and to bethe person whose name is subscribed to the within instrument and acknowledgedthat .... he .... executed the same for the purposes therein contained, and theundersigned does further certify that he is, at the date of this certificate, acommissioned officer of the rank stated below and is performing service in theuniformed services.
.... (Signature of the officer)
.... (Rank and Serial No. of officer)
and command to which attached.
19-11-203. Death of principal not to affect acts performed in goodfaith under power of attorney.
Noperson acting under any power of attorney made by any person who performsservice in the uniformed services, during the time the principal remains in thearmed forces, shall be held liable for an act upon the ground that theprincipal was not then alive if the act was performed in good faith and withoutactual knowledge of the death of the principal. The fact that any principal hasbeen reported missing shall not in itself be considered as indicating the deathof the principal.