Section 321.64. Reemployment after completion of federal active duty or service.

 

(1)  

(a) Any person who has enlisted or enlists in or who has been or is inducted or ordered into federal active duty for 90 days or more, and any person whose services are requested by the federal government for national defense work as a civilian during a period officially proclaimed to be a national emergency or a limited national emergency, who, to perform the duty or service, has left or leaves a position, other than a temporary position, in the employ of any political subdivision of the state or in the employ of any private or other employer, shall be restored to that position or to a position of like seniority, status, pay, and salary advancement as though service toward seniority, status, pay, or salary advancement had not been interrupted by the absence, if all of the following conditions are met:

1. The person presents to the employer evidence of satisfactory completion of the period of federal active duty or federal government service, or of discharge from the U.S. armed forces under conditions other than dishonorable.

2. The person is still qualified to perform the duties of the position.

3. The person makes application for reemployment and resumes work within 90 days after completion of the federal active duty or federal government service, military or civilian, or was so discharged from the U.S. armed forces, or within 6 months after release from hospitalization for duty-connected or service-connected injury or disease.

4. The employer's circumstances have not changed as to make it impossible or unreasonable to restore the person.

5. The federal active duty or federal government service was not for more than 5 years unless extended by law.

(b) Except as provided in par. (c) , in the event of any dispute relating to the provisions under par. (a) , the person may file a complaint regarding the matter with the department of workforce development. The department of workforce development shall process any complaint made under this paragraph in the same manner as employment discrimination complaints are processed under s. 111.39 .

(c) If a dispute arises regarding a classified employee of the state relating to the provisions of par. (a) , the complaint shall be filed with the administrator of the division of personnel management. A decision of the administrator of the division of personnel management in the department of administration may be reviewed under ch. 227 .

(2)  The service of any person who is or was restored to a position in accordance with sub. (1) shall be considered not to be interrupted by the absence, except for the receipt of pay or other compensation for the period of the absence and he or she shall be entitled to participate in insurance, pensions, retirement plans, or other benefits offered by the employer under established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time the person entered or was enlisted, inducted, or ordered into federal active duty or federal government service. The person whose position was restored may not be discharged from the position without cause within one year after restoration and the discharge is subject to all federal or state laws affecting any private employment and to the provisions of contracts that may exist between employer and employee. Each political subdivision shall contribute or pay all contributions of the employer to the applicable and existent pension, annuity, or retirement system as though the service of the employee had not been interrupted by federal active duty or federal government service.

(3)  If an employer fails or refuses to comply with subs. (1) and (2) , a person entitled to the benefits under subs. (1) and (2) may petition the circuit court to require the employer to comply with those subsections. Upon the filing of the petition and on reasonable notice to the employer, the court may require the employer to comply with those subsections and to compensate the person for any loss of wages or benefits suffered by reason of the employer's action. The court shall order a speedy hearing and shall advance the case on the calendar. No fees or court costs may be taxed against a person petitioning the court under this subsection. The action commenced under this subsection against a private employer, and the trial or hearing of the action, shall be in any county in which the employment took place or in which the private employer maintains a place of business, and in all other cases shall be as provided in s. 801.50 .

(4)  No person who is appointed in the service of the state or of any political subdivision to fill the place of a person entering federal active duty or federal government service under sub. (1) shall acquire permanent tenure during the period of that replacement service.

(5)  If the decision of the circuit court is appealed the person who petitioned the circuit court under sub. (3) need not file an appeal bond for the security for costs on the appeal.

(6)  The restoration of classified employees of the state shall be governed by s. 230.32 . The restoration of unclassified state employees shall be governed by this section.

2005 a. 22 ; 2007 a. 200 s. 175 ; Stats. 2007 s. 321.64; 2015 a. 55 . Language in subs. (1), (2), and (6) clearly expresses that unclassified state employees are protected by sub. (2). "Restoration" in sub. (6) not only refers to who must be restored to state service under sub. (1), but also to restoration rights, including those specified in sub. (2). Sub. (2) unambiguously provides that persons who have been restored under sub. (1) have the restoration rights described in sub. (2). Scocos v. State of Wisconsin Department of Veteran Affairs, 2012 WI App 81 , 343 Wis. 2d 648 , 819 N.W.2d 360 , 11-1178 . Returning the Veteran to Work. Walther. Wis. Law. July 2006.