A1269

An Act concerning compensation, and leaves of absence for certain active and retired members of the military who are public employees, and amending various sections of the statutory law and supplementing Title 38 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. R.S.38:23-1 is amended to read as follows:

38:23-1. a. A permanent or full-time temporary officer or employee of the State or of a board, commission, authority or other instrumentality of the State, or of a county, school district or municipality, who is a member of the organized reserve of the Army of the United States, United States Naval Reserve, United States Air Force Reserve or United States Marine Corps Reserve, or other organization affiliated therewith, including the National Guard of other states, shall be entitled, in addition to pay received, if any, as a member of a reserve component of the Armed Forces of the United States, to leave of absence from his or her respective duty without loss of pay or time on all work days on which he or she shall be engaged in any period of Federal active duty, provided, however, that such leaves of absence shall not exceed 30 work days in any calendar year. Such leave of absence shall be in addition to the regular vacation or other accrued leave allowed such officer or employee.

Any leave of absence for such duty in excess of 30 work days shall be without [pay but without] loss of time, and the officer or employee shall be entitled to pay as provided in an applicable collective negotiations agreement in effect at the time of the leave of absence. If an applicable collective negotiations agreement is not in effect or does not address this matter or a person is not covered by a collective negotiations agreement, the officer or employee shall be entitled to pay as the public employer may, at its sole discretion, provide.

An officer or employee entitled to a leave of absence also shall be entitled, during the period of the leave of absence, to payment by the public employer, on behalf of the officer or employee, of any contribution required of the officer or employee to a retirement system or program and to a health care benefits plan or program, in addition to any contribution or payment required of the public employer.

The leave of absence to which an officer or employee is entitled shall include:

leave for one travel day to the active duty location if the officer or employee resides 50 or more miles from the location of duty and checks in to lodgings at or near the duty location for the purpose of resting prior to undertaking the military service obligation; and

leave, prior to undertaking the military service obligation, of five days if the length of service will be 30 to 180 days, and of ten days if the length of service will be 181 days or more.

For the purposes of this section:

“Federal active duty” means:

the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority, including active duty, active duty for training, initial active duty for training, and inactive duty training;

service on a full time basis in the National Guard;

time for medical appointments and consultations, surgery, counseling for post traumatic stress disorder, recuperation, rehabilitation, and recovery from an injury sustained or aggravated as a result of military service; and

time for an examination to determine fitness for performing funeral honors duty as authorized by 10 U.S.C. s.12503 or 32 U.S.C. s.115.

b. Notwithstanding subsection a. of this section, a full-time temporary officer or employee who has served under such temporary appointment for less than one year shall receive for the service hereinabove described leave without pay but without loss of time.

(cf: P.L.2001, c.351, s.1)

2. Section 1 of P.L.1951, c.18 (C.38:23-4.1) is amended to read as follows:

1. As used in the act to which this act is a supplement, the term "emergency" shall include, but shall not be limited to, any period of time after June [twenty-third, one thousand nine hundred and fifty] 23, 1950, and prior to the termination, suspension or revocation of the proclamation of the existence of a national emergency issued by the President of the United States on December [sixteenth, one thousand nine hundred and fifty] 16, 1950, or termination of the existence of such national emergency by appropriate action of the President or Congress of the United States, and any period of time after September 11, 2001, and prior to the termination or suspension of the Global War on Terrorism as declared by the President of the United States.

(cf: P.L.1951, c.18, s.1)

3. N.J.S.38A:4-4 is amended to read as follows:

38A:4-4. a. A permanent or full-time temporary officer or employee of the State or of a board, commission, authority or other instrumentality of the State or of a county, school district or municipality who is a member of the organized militia shall be entitled, in addition to pay received, if any, as a member of the organized militia, to leave of absence from his or her respective duties without loss of pay or time on all days during which he or she shall be engaged in any period of State or Federal active duty; provided, however, that the leaves of absence for Federal active duty or active duty for training shall not exceed 90 work days in the aggregate in any calendar year. Any leave of absence for such duty in excess of 90 work days shall be [without pay but] without loss of time, and the officer or employee shall be entitled to pay as provided in an applicable collective negotiations agreement in effect at the time of the leave of absence. If an applicable collective negotiations agreement is not in effect or does not address this matter or a person is not covered by a collective negotiations agreement, the officer or employee shall be entitled to pay as the public employer may, at its sole discretion, provide.

The leave of absence to which an officer or employee is entitled shall include leave for one travel day to the active duty location if the officer or employee resides 50 or more miles from the location of duty and checks in to lodging at or near the duty location for the purpose of resting prior to undertaking the military service obligation.

b. Leave of absence for such military duty shall be in addition to the regular vacation or other accrued leave allowed such officers and employees by the State, county or municipal law, ordinance, resolution, or regulation. If the officer or employer is not entitled to pay during a leave of absence, the officer or employee may elect to use accrued vacation or other paid leave during the leave of absence. The public employer shall not require that officer or employee to use vacation or other accrued paid leave during the leave of absence.

c. Notwithstanding subsection a. of this section, a full-time temporary officer or employee who has served under such temporary appointment for less than one year shall receive for the service hereinabove described leave without pay but without loss of time.

(cf: P.L.2001, c.351, s.3)

4. (New section) a. The State and each political subdivision of the State shall prepare and maintain written policies and procedures to be followed with regard to leaves of absence by officers and employees who are members of the Armed Forces of the United States and the reserve components thereof, including the National Guard. The policies and procedures shall address all matters regarding leaves of absence pursuant to R.S.38:23-1, R.S.38:23-4, N.J.S.38A:4-4, and any other statute regarding leaves of absence, compensation, and benefits of such officers and employees. The policies and procedures shall specify, among other matters, documentation requirements.

The policies and procedures shall be applied in a uniform and fair manner.

b. Notice of any changes to the policies and procedures shall be given promptly to all affected officers and employees and training shall be provided to ensure proper implementation of the polices and administration of the procedures.

c. Notwithstanding any other provision of a law, rule, or regulation to the contrary, upon receipt of a request for a leave of absence by an officer or employee, the public employer shall inform an officer or employee in writing, within 90 days after the receipt, of any issues or matters regarding the leave request. If the employer does not notify the officer or employee within this time period, the employer shall be permanently barred from raising any such issue or matter, or charging the officer or employee with an administrative violation.

d. The receipt of required documentation submitted by an officer or employee shall be acknowledged in writing by the public employer.

e. A public employer shall provide a full accounting to the officer or employee of all matters regarding pay within a reasonable period of time and in a reasonable manner.

f. All records for each officer and employee shall be maintained by the public employer for a period of not less than 10 years.

g. No provision of this section nor any amendatory provision of P.L. , c. (pending before the Legislature as this bill) shall alter any duty to negotiate leaves of absences for such officers or employees as otherwise required by law.

h. If in any action brought in a court of law by a public officer or employee a public employer is found to be in violation of this section or any other statute concerning the employment, compensation, or leave of absence of an officer or employee who served as a member of the United States Armed Forces or the National Guard, the court shall award to the officer or employee reasonable attorney’s fees and other fees and costs.

5. This act shall take effect immediately.

STATEMENT

This bill makes various changes to the laws concerning termination, compensation, and leaves of absence of certain active and retired members of the United States military, the reserves, and the National Guard who are public employees.

N.J.S.A.38:23-1 requires a public employer to provide a paid leave of absence for federal active duty to public employees who are members of the reserves of the United States military, including the National Guard of other states. The employer must provide paid leave for 30 work days per year. Leave after 30 days is provided without pay. Also, N.J.S.A.38A:4-4 requires a public employer to provide a paid leave of absence for State or federal active duty to public employees who are members of the New Jersey National Guard. The employer must provide paid leave for 90 work days per year. Leave after 90 days is provided without pay. This bill provides that the public employee would be entitled to pay for the days over 30 or the days over 90, as appropriate, if pay is provided in an applicable collective negotiations agreement in effect at the time of the leave of absence. If an applicable collective negotiations agreement is not in effect or does not address this matter or a person is not covered by a collective negotiations agreement, the officer or employee will be entitled to pay only if the public employer decides to provide it.

Also for the purposes of N.J.S.A.38A:4-4, the bill permits a public employee to use, at the employee’s sole discretion, accrued paid leave for State and federal active duty as a member of the New Jersey National Guard and the employer cannot require an employee to use that time for leave.

For the purposes of N.J.S.A.38:23-1, this bill entitles a public employee, during the leave of absence, to payment by the public employer, on behalf of the employee, of any contribution required of the officer or employee to a retirement system or program and to a health care benefits plan or program, in addition to any contribution or payment required of the public employer.

For the purposes of N.J.S.A.38:23-1, this bill entitles a public employee to: (1) leave for one travel day to the active duty location if the officer or employee resides 50 or more miles from the location of duty and checks in to lodgings at or near the duty location for the purpose of resting prior to undertaking the military service obligation; and (2) leave, prior to undertaking the military service obligation, of five days if the length of service will be 30 to 180 days, and of ten days if the length of service will be 181 days or more.

Also for the purposes of N.J.S.A.38:23-1, the bill defines “Federal active duty” to mean:

service on a full time basis in the National Guard;

time for an examination to determine fitness for performing funeral honors duty as authorized by federal law.

N.J.S.A.38:23-4.1 defines “emergency” for the purposes of N.J.S.A.38:23-4, which provides that a public employee who enters the active military service of the United States or of this State in time of war or emergency must be granted a leave of absence for that service and for three months after receiving a discharge from service. If the public employee is incapacitated by injury or sickness at the time of discharge, the leave must be extended until three months after the employee’s discharge, or until the expiration of two years from the date of discharge. N.J.S.A.38:23-4 also provides that during the leave, the employee cannot be terminated or laid off if entry into the military occurred in time of war or emergency. During the period of leave, the employee is entitled to all the rights, privileges and benefits of the public employment. The leave may be granted with or without pay. The employee is entitled to resume the employment if he applies before the expiration of the leave. The bill defines “emergency” for the purposes of this statute to include any period of time from September 11, 2001 until the termination of the Global War on Terrorism as declared by the President of the United States.

Finally, the bill requires public employers to prepare and maintain written policies and procedures to be followed with regard to leaves of absence by officers and employees who are members of the Armed Forces of the United States and the reserve components thereof, including the National Guard. The policies must specify documentation requirements for leave, and the receipt of required documentation must be acknowledged in writing by the public employer. The policies and procedures must be applied in a uniform and fair manner. Notice of any changes to the policies and procedures must be given promptly to all affected officers and employees and training must be provided to ensure proper implementation and administration. Upon receipt of a request for a leave or absence by an officer or employee, the public employer must inform an officer or employee in writing, within 90 days after the receipt, of any issues or matters regarding the leave request. If the employer does not notify the officer or employee within such time period, the employer will be permanently barred from raising any such issue or matter, or charging the officer or employee with an administrative violation. A public employer must provide a full accounting to an officer or employee of all matters regarding pay within a reasonable period of time and in a reasonable manner. All records for each officer or employee must be maintained by the public employer for a period of not less than 10 years. If in any action brought in a court of law by an officer or employee, a public employer is found to be in violation of any statutes concerning the employment, compensation, or leave of absence of a public officer or employee who served as a member of the United States Armed Forces or the National Guard, the court must award to the officer or employee reasonable attorney’s fees and other fees and costs.