(1) If a member of the National Guard is ordered into state active duty pursuant to this chapter or into active duty as defined by the law of any other state, a private or public employer, or an employing or appointing authority of this state, its counties, school districts, municipalities, political subdivisions, career centers, community colleges, or universities, may not discharge, reprimand, or in any other way penalize such member because of his or her absence by reason of state active duty.
(2)(a) Upon the completion of state active duty, a member of the National Guard shall promptly notify the employer of his or her intent to return to work.
(b) An employer is not required to allow a member of the National Guard to return to work under this section if:1. The employer’s circumstances have so changed as to make employment impossible or unreasonable;
2. Employment would impose an undue hardship on the employer;
3. The employment from which the member of the National Guard leaves to serve in state active duty is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period; or
4. The employer had legally sufficient cause to terminate the member of the National Guard at the time he or she left for state active duty.
The employer has the burden of proving the impossibility or unreasonableness, undue hardship, the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period, or the legally sufficient cause to terminate the person at the time he or she left for state active duty.
(c) A member of the National Guard who returns to work after serving on state active duty is entitled to:1. The seniority that the member had at his or her place of employment on the date of the commencement of his or her state active duty and any other rights and benefits that inure to the member as a result of such seniority; and
2. Any additional seniority that the member would have attained at his or her place of employment if he or she had remained continuously employed and the rights and benefits that inure to the member as a result of such seniority.
(d) A member of the National Guard who returns to work after serving on state active duty may not be discharged from such employment for a period of 1 year after the date the member returns to work, except for cause.
(e) An employer may not require any National Guard member returning to employment following a period of state active duty service to use vacation, annual, compensatory, or similar leave for the period during which the member was ordered into state active duty. However, any such returning member shall, upon his or her request, be permitted to use, for the period during which the member was ordered into state active duty, any vacation, annual, compensatory, or similar leave with pay accrued by the member prior to the commencement of his or her state active duty service.
(3) If the Adjutant General certifies that there is probable cause to believe there has been a violation of this section, an employee ordered into state active duty so injured by a violation of this section may bring civil action against an employer violating this section in a court of competent jurisdiction of the county in which the alleged violator resides or has his or her principal place of business, or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant is liable for actual damages or $500, whichever is greater. The prevailing party in any litigation proceedings is entitled to recover reasonable attorney’s fees and court costs.
(4) The certification of probable cause may not be issued until the Adjutant General, or his or her designee, has investigated the issues. All employers and other personnel involved with the issues of such investigation must cooperate with the Adjutant General in the investigation.
