sb 0446

CHAPTER 82

SB 446 - FINAL VERSION

AN ACT relative to rights and protections for New Hampshire national guard members called to state active duty.

SPONSORS: Sen. Barnes, Dist 17; Sen. D'Allesandro, Dist 20; Sen. Johnson, Dist 3; Sen. Hollingworth, Dist 23; Rep. Avery, Ches 8; Rep. Coughlin, Ches 8; Rep. Fields, Hills 18; Rep. Heon, Straf 14; Rep. Emerson, Ches 13

This bill provides protection from discrimination in employment and re-employment for New Hampshire national guard members called to state active duty. The bill also contains provisions for the same civil relief, rights, defenses, benefits, and protections for New Hampshire national guard members called to state active duty for a period of 30 days or more as are provided for federal military service.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to rights and protections for New Hampshire national guard members called to state active duty.

Be it Enacted by the Senate and House of Representatives in General Court convened:

82:1 New Chapter; National Guard; Rights and Protections. Amend RSA by inserting after chapter 110-B the following new chapter:

110-C:1 Employment Protection for Members of the National Guard, State Guard, or Militia.

I. It is the intention of this section to eliminate the differences in benefits, rights, and protections in employment between individuals called to active duty by the federal government and those called to active duty by the state. Members of the national guard or state guard, when called to active service, state or federal, shall receive the same benefits, privileges, and protections in employment regardless of the activation authority or location of service.

II. Any person who shall be called by the governor to active duty, pursuant to RSA 110-B:6 or RSA 111:1, as a member of the national guard or as a member of the militia shall be afforded such employment and reemployment rights, privileges, benefits, and protections in employment as provided in the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301 et seq., as though that person had been called to active duty in the service of the United States; and shall not be denied hiring, retention in employment, promotion, or other incidents or advantages of employment because of any obligation as a member of the national guard or the militia.

III.(a) Any member of national guard who believes his or her rights have been violated under this section must first attempt mediation through the Employer Support of the Guard and Reserve organization. If mediation is unsuccessful for any reason, including a refusal to participate by the employer, then the mediator shall certify the complaint to the New Hampshire department of labor.

(b) The department of labor shall provide assistance to affected military members with respect to the enforcement of rights and benefits under this section. If the department, after notice and a hearing, determines that an employer has violated this section, the department shall order a remedy which corrects the violation and may further order the employer to take action which compensates the member for any adverse impact of the violation. Any order to make the member whole shall be limited to pay, time credit, health benefits or other areas over which the employer has control.

(c) The department of labor shall adopt rules pursuant to RSA 541-A, to govern complaint and hearing procedures under this section.

(d) In the event the department of labor is unable to successfully resolve a complaint against an employer, the department of labor shall notify the affected military member and the military member may request that the complaint be referred to the attorney general. The attorney general may commence an action in the name of the state of New Hampshire for relief under this chapter for such person.

(e) If the attorney general declines to proceed in a given case, or if the person does not desire the assistance of the attorney general, the affected member may file a petition in superior court seeking relief against the employer for violation of this section. In any civil action to enforce the provisions of this section, the prevailing party may be allowed reasonable attorney's fees to be assessed by the court and collected as costs.

(f) The courts shall give proceedings under this chapter priority on the court calendar.

110-C:2 Civil Relief for Members of the New Hampshire National Guard, State Guard, or Militia.

I. Any person who shall be called by the governor to active duty for a period of 30 days or more as a member of the state guard or national guard or as a member of the militia, shall be afforded the same civil protections, rights, privileges, benefits and relief, accorded under the Soldiers and Sailors Civil Relief Act, 50 U.S.C. Section 500 et seq., and Section 560 et seq., as if they had been called to federal active duty in the service of the United States.

II. In any civil action to enforce the provisions of this section, the prevailing party may be allowed reasonable attorney's fees to be assessed by the court and collected as costs.