Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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Law Review 1172

Law Review 1172

New York Legislature Strengthens Protections for Military Members Under State Law

By Mathew B. Tully, Esq.* and Andrew L. McNamara, Esq.**

1.2—Discrimination Prohibited

1.3.2.2—Continuous Accumulation of Seniority—Escalator Principle

1.8—Relationship Between USERRA and other Laws/Policies

Bill Number: A01428

Relevant Statutes: New York Military Law § 243, New York State Civil Service Law § 81, New York State Civil Service Law, § 88

The Governor of the State of New York recently signed into law a series of changes to New York State Military Law and Civil Service Law that strengthen the protections for public employees who are absent from their positions for the purpose of performing military service. The purposes of the bill focus on prohibiting the abolishment of positions occupied by public employees absent on military duty and mandating compliance with the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). 

The recent statutory changes were prompted, at least in part, by the actions of the Metropolitan Transportation Authority (“MTA”), which allowed several service members to be laid off in late 2010 while they were serving overseas, due to the authority’s downsizing. The MTA had interpreted the Soldiers and Sailors Civil Relief Act and current New York State statutory framework to not require a downsizing public employer to make an exception for soldiers on leave from their civilian jobs. The New York State Legislature acted to formulate the statutory changes which were signed into law on July 20, 2011.

The specific changes to the New York State Military Law involve the addition of a new subdivision, 10-b, to Section 243, which states that if a public employer consolidates, abolishes, displaces or demotes a position occupied by someone currently on active duty, the employer will place the employee on a preferred list to be eligible for reemployment. The provision further provides that the employer shall comply with USERRA in providing full reemployment rights warranted to the employee upon the termination of active duty, provided the right to reemployment does not displace rights over any person with greater seniority. The law explicitly prohibits an employer from abolishing any position solely based upon the fact that it is currently filled by an individual engaged in military duty.

The statutory changes to the New York civil service law include adding a new section 88, which prohibits discrimination against public employees serving in the armed forces and states that no public employer shall deny employment, reemployment, or any benefit of employment to any person or employee based on the prospective, current or past enlistment, appointment or commission with the armed forces of the United States. The statutory section also states such person shall be afforded full enforcement rights under the laws of New York and of the United States, including USERRA. The statutory changes also include an amendment to subdivision 1 of section 81, which provides a cap on the duration of time an individual that performed active duty and is listed on the preferred list may be eligible for reemployment. The amendment provides that an employee whose name was placed on a preferred list and at the time of such placement was on active duty shall not be eligible for employment reinstatement for a period longer than four years after the termination of military duty.

The recent statutory changes enacted by the New York State Legislature demonstrate the strong stance that many states, including New York are taking against discrimination based on military service. The changes to both New York Military Law and Civil Service Law clarify the obligations of public employers and provide notification that any violation entitles the employee to full enforcement rights provided by the State of New York and the Untied States.

This case is based on the New York Military Law, not the Uniformed Services Employment and Reemployment Rights Act (USERRA).  USERRA does not supersede a state law that provides greater or additional rights.  See 38 U.S.C. 4302(a)

*Mathew B. Tully is a Lieutenant Colonel in the New York Army National Guard and the founding partner of Tully Rinckey PLLC, a full-service law firm based in Albany, N.Y., with offices also in Washington D.C. He concentrates his practice on representing military personnel and federal government sector employees and can be reached at mtully@tullylegal.com.

**Andrew L. McNamara is an associate attorney at Tully Rinckey PLLC and concentrates his practice on USERRA and federal employment law. He earned his J.D., cum laude from Albany Law School of Union University and an M.S. in Bioethics from Albany Medical College. He graduated from the University of Albany, summa cum laude, with honors in History. He can be reached at amcnamara@tullylegal.com.