2013 New York Consolidated Laws
MIL - Military
Article 11 - (235 - 254) PRIVILEGES, PROHIBITIONS AND PENALTIES
242 - Rights of public officers and employees absent on military duty as members of the organized militia or of reserve forces or reserve components of the

 
    § 242. Rights of public officers and employees absent on military duty
  as  members  of  the  organized  militia or of reserve forces or reserve
  components of the armed forces of the United States. 1. Definitions. (a)
  Public officer or employee. The term "public officer  or  employee",  as
  used  in  this section, shall include every person, by whatsoever title,
  description or designation  known,  who  receives  any  pay,  salary  or
  compensation  of  any  kind from the state or a municipal corporation or
  any other political subdivision thereof, or who is in any department  of
  the  state  or  in  the  service  of any public authority, but shall not
  include a person holding a position in the exempt  class  of  the  civil
  service  whose  appointment is terminated or whose position is filled by
  other than a substitute appointee.
    (b) Ordered military duty. The term "ordered military duty",  as  used
  in this section, shall mean:
    Any  military  duty  performed  in  the service of the state or of the
  United States, including but not limited to attendance  at  any  service
  school or schools conducted by the armed forces of the United States, by
  a  public  officer or employee as a member of any force of the organized
  militia or of any reserve force or reserve component of the armed forces
  of the United States, pursuant to orders issued by  competent  state  or
  federal authority, with or without the consent of such public officer or
  employee.  Participation  in  routine  reserve  officer  training  corps
  training is not considered to be military duty  except  when  performing
  advanced  training  duty as a member of a reserve component of the armed
  forces.
    2. Leave of absence while engaged in performance of  ordered  military
  duty.  Every  public  officer  or  employee  shall be entitled to absent
  himself and shall be deemed to have a leave of absence from  his  duties
  or  service  as  such  public  officer  or employee while engaged in the
  performance of ordered military duty and while going  to  and  returning
  from such duty.
    3.  Leave  of  absence  while  attending service schools. Every public
  officer or employee who is or becomes a voluntary member of any force of
  the organized militia or of any reserve force or  reserve  component  of
  the  armed  forces  of  the  United  States  shall be entitled to absent
  himself and shall be deemed to have a leave of absence from  his  duties
  or  service as such public officer or employee while in attendance, as a
  member of such force or reserve components, at  any  service  school  or
  schools  conducted  by  the armed forces of the United States, and while
  going to and returning from such school or schools, notwithstanding that
  orders for such attendance are or may be issued with the consent of such
  public officer or employee.
    3-a. Leave of absence while  performing  full-time  training  duty  or
  active duty for training with or in an armed force of the United States.
  Every public officer or employee who is or becomes a member of any force
  of the organized militia or of any reserve force or reserve component of
  the  armed  forces  of  the  United  States  shall be entitled to absent
  himself and shall be deemed to have a leave of absence from  his  duties
  or  service  as  such  public officer or employee while performing, as a
  member of such force or reserve component,  initial  full-time  training
  duty  or  initial  active duty for training with or in an armed force of
  the United States under the provisions of this chapter or  the  laws  of
  the  United  States  or both, and while going to and returning from such
  full-time training duty or active  duty  for  training,  notwithstanding
  that  orders for such duty are or may be issued with the consent of such
  public officer or employee.
    4. Employment rights. Time during which a public officer  or  employee
  is  absent  pursuant  to  the  provisions of subdivisions two, three and

  three-a  of  this  section  shall  not  constitute  an  interruption  of
  continuous   employment  and,  notwithstanding  the  provisions  of  any
  general, special or local law or the provisions of any city charter,  no
  such  officer or employee shall be subjected, directly or indirectly, to
  any loss or diminution of time service, increment, vacation  or  holiday
  privileges,  or any other right or privilege, by reason of such absence,
  or  be  prejudiced,  by  reason  of  such  absence,  with  reference  to
  continuance   in   office   or   employment,  reappointment  to  office,
  re-employment, reinstatement, transfer or promotion.
    5. Pay for military duty. Every public officer or  employee  shall  be
  paid his salary or other compensation as such public officer or employee
  for  any  and all periods of absence while engaged in the performance of
  ordered military duty, and while going to and returning from such  duty,
  not  exceeding  a  total  of  thirty  days  or  twenty-two working days,
  whichever is greater, in any one calendar year and not exceeding  thirty
  days  or  twenty-two  working  days,  whichever  is  greater, in any one
  continuous period of such absence.
    5-a. Pay for employees of a city with a population of one  million  or
  more. This subdivision shall govern the calculation of compensation and,
  where applicable, repayment of same by public officers or employees of a
  city  with  a  population  of one million or more who are engaged in the
  performance of ordered military duty, including time spent traveling  to
  and  returning  from such duty. In any conflict between this subdivision
  and any other provision of law  with  respect  to  such  public  servant
  soldiers, this subdivision shall be controlling.
    (a) Definitions. As used in this subdivision:
    (i)  "Base pay of city salary" means the base pay received by a public
  officer or employee from employment by a city. For public  officers  and
  employees  who, prior to the effective date of this subdivision, elected
  to participate in a "full pay/repayment plan",  have  returned  to  city
  employment  from  ordered military duty as of the effective date of this
  subdivision and are, on the effective date of this  subdivision,  public
  officers  or  employees, the base pay of city salary shall be calculated
  by the implementing agency as the salary received by the public  servant
  soldier  as  of  the  effective  date of this subdivision or the date of
  return to city service, whichever is later.
    For public officers and employees who, prior to the effective date  of
  this  subdivision, elected to participate in a "full pay/repayment plan"
  and who return to city employment from ordered military duty  after  the
  effective date of this subdivision, the base pay of city salary shall be
  calculated on the date of return to city employment.
    For  public officers and employees who, prior to the effective date of
  this subdivision, elected to participate in a "full pay/repayment  plan"
  and  who  have,  by  the  effective  date  of  this subdivision, already
  separated from city employment in a manner other than by retirement, and
  except where the implementing agency shall determine  the  existence  of
  hardship,  the base pay of city salary shall be calculated as the salary
  received by the public servant soldier as of the date of separation from
  city service.
    For public officers and employees who, prior to the effective date  of
  this  subdivision, elected to participate in a "full pay/repayment plan"
  and who separate from city employment in a manner other than  retirement
  after  the  effective  date  of  this  subdivision, and except where the
  implementing agency shall determine the existence of hardship, the  base
  pay  of  city  salary  shall be calculated as the salary received by the
  public servant soldier as of the date of return to city service.
    (ii)  "Balloon  payment"  means  the   payment   required   for   full
  satisfaction of any remaining outstanding repayment obligation after ten

  years  from  the  date  of return from ordered military duty pursuant to
  paragraph (e) of this subdivision.
    (iii) "City" means a city with a population of one million or more.
    (iv) "City salary" means the gross salary received by a public officer
  or  employee  from  employment  by  a city, before taxes, deductions, or
  court-ordered payments, required or voluntary; but excluding payments by
  a city as employer for health, pension, and other benefits.
    (v) "Covered operation" means those military operations designated  by
  the  federal  government  of the United States, in support of "Operation
  Enduring Freedom", "Operation Iraqi Freedom", "Operation  Noble  Eagle",
  or  successors  thereto, or operations specifically connected by federal
  designation,  action  or  implication  with   homeland   security.   The
  implementing   agency   may  make  such  additional  designations  on  a
  case-by-case basis as it shall deem, in its discretion, to be in keeping
  with the spirit and intent of this subdivision.
    (vi) "Differential pay" means the pay  calculated  as  the  difference
  between  a  public  servant  soldier's  military salary and city salary,
  where the military salary is less than the city salary.
    (vii) "Full pay/repayment plan" means a salary and  benefits  plan  in
  effect in a city prior to the effective date of this subdivision whereby
  a  public  servant  soldier  elected  to  receive  city  salary while on
  military duty, but is required to repay the lesser of such  city  salary
  or military salary to a city upon return from military duty.
    (viii)  "Implementing agency" means an agency of a city, as designated
  by the mayor of such city in writing, that is  authorized  to  implement
  the provisions of this subdivision.
    (ix)  "Military  salary" means the gross salary paid by the government
  of the United States to a public servant soldier  for  ordered  military
  duty in the armed forces of the United States in a covered operation, as
  further  defined by the implementing agency, provided that such military
  pay shall be calculated without  regard  to  such  extra  or  additional
  stipends  as  hazard  pay,  housing or food allowances, or other similar
  additions.
    (x) "Public officer" or  "employee"  means  a  public  officer  or  an
  employee of a city.
    (xi)  "Public servant soldier" means a public officer or employee of a
  city performing ordered military  duty  in  connection  with  a  covered
  operation.
    (b)  The  mayor of a city shall designate an agency of such city to be
  the  implementing  agency  that  will  administer  and  implement   this
  subdivision.  The implementing agency is hereby authorized to and shall:
    (i)  provide for the continuation of health insurance benefits, to the
  public servant soldier and to such public servant soldier's  family,  if
  the  family  had  been  included  in  such  coverage prior to the public
  servant soldier beginning ordered military duty, under  the  same  terms
  and  conditions  as  applied  to  such  public  servant soldier prior to
  leaving city employment for ordered military duty; and
    (ii) provide for hardship under certain conditions determined  by  the
  implementing   agency   for  public  servant  soldiers  who  elected  to
  participate in  a  "full  pay/repayment  plan".  Such  conditions  shall
  include,  but  shall  not  be  limited  to,  any  material unforeseen or
  compelling changes in circumstances affecting a public servant soldier's
  ability to repay that occurred since such public servant soldier elected
  to participate in the  "full  pay/repayment  plan,"  including  but  not
  limited  to  injuries  sustained  while  on  ordered military duty, or a
  determination by the implementing agency that the public servant soldier
  is or will be experiencing severe economic hardship due to a  change  in
  circumstances.  Relief may include an extension of the repayment term or

  a reduction in the percentage of salary dedicated  to  repayment,  or  a
  modification   to   the   requirement   for   a  balloon  payment.  Such
  determinations of economic hardship may be made on a case-by-case basis,
  and   the   implementing  agency  may  require  the  provision  of  such
  information by the public servant soldier as it deems necessary to  make
  such determination.
    (c)  Subdivision five of this section or any other law to the contrary
  notwithstanding, until August first, two thousand ten, unless the  mayor
  of a city, in his or her discretion, extends such date, a public officer
  or employee shall be paid city salary as such public officer or employee
  for  any  and all periods of absence while engaged in the performance of
  ordered military duty, and while going to and returning from such  duty,
  not  exceeding  thirty  working  days  in  any one calendar year and not
  exceeding thirty working days in  any  one  continuous  period  of  such
  absence.
    (d)  Subdivision five of this section or any other law to the contrary
  notwithstanding, until August first, two thousand ten, unless the  mayor
  of a city, in his or her discretion, extends such date, a public servant
  soldier  shall, after having received the city salary to which he or she
  is entitled pursuant to paragraph  (c)  of  this  subdivision,  be  paid
  differential pay thereafter on his or her regularly scheduled pay period
  for the duration of such ordered military duty, if such ordered military
  duty  is  in  connection with a covered operation. No repayment shall be
  required to the city for such differential  pay  received  by  a  public
  servant  soldier,  provided that this prohibition on repayment shall not
  apply in the case of a material error in calculation that results in  an
  unwarranted  increase  to  the  public servant soldier. Repayment of any
  such overage shall be governed by the terms of  paragraph  (e)  of  this
  subdivision.
    (e)  A  public officer or employee who, prior to the effective date of
  this subdivision, elected to participate in a "full pay/repayment  plan"
  and,  in  having  done  so,  incurred a repayment obligation, shall make
  repayments in accordance with terms adopted by the implementing  agency,
  except that, with respect to such repayment obligations, such officer or
  employee shall have satisfied the obligation to repay when he or she has
  repaid  eighty-five  percent  of  the  amount of city salary or military
  salary, whichever is less, less other such discounts implemented by  the
  implementing  agency  as  of  the effective date of this subdivision and
  such incentives as may be implemented  by  the  implementing  agency  to
  encourage payment, and no such term shall:
    (i) require a public officer or employee, while employed by such city,
  to  pay in any pay period more than seven and one-half percent of his or
  her base pay of city salary  toward  satisfying  his  or  her  repayment
  obligation,  except that a term may provide for full satisfaction of any
  remaining outstanding repayment obligation after ten years from the date
  of return from ordered military duty; or
    (ii) require a retired public officer  or  employee  to  pay,  in  any
  month,  an  amount  more  than  seven and one-half percent of his or her
  monthly pension payment,  except  that  a  term  may  provide  for  full
  satisfaction of any remaining outstanding repayment obligation after ten
  years from the date of return from ordered military duty; or
    (iii)  require  a public officer or employee separated from employment
  by such city in a manner other than by retirement, to pay, in any  year,
  an  amount  more than seven and one-half percent of the base pay of city
  salary, except that a term may provide  for  full  satisfaction  of  any
  remaining outstanding repayment obligation after ten years from the date
  of return from ordered military duty.

    (f)  Notwithstanding  paragraph  (e) of this subdivision, a city shall
  not require the satisfaction of any repayment obligation  in  the  event
  that  a  public  servant soldier is killed in the performance of ordered
  military duty.
    6.  Rights  and contributions under retirement systems. (a) The amount
  of required contributions to any pension or retirement system of which a
  public officer or employee absent while engaged in  the  performance  of
  ordered  military  duty is a member shall be deducted from the salary or
  other compensation paid to him as such public  officer  or  employee  as
  provided  in  this  section.  If  such required contributions exceed the
  amount of such salary or other compensation to which a public officer or
  employee is entitled while engaged in the performance of military  duty,
  the  amount  of  such salary or other compensation shall be applied upon
  such required contributions and such public officer  or  employee  shall
  have the right to pay to such pension or retirement system the amount by
  which  such contributions exceed such salary or other compensation. Such
  public officer or employee shall also have the  right  to  pay  to  such
  system,  for any period of such absence during which he shall receive no
  salary or other compensation as such public  officer  or  employee,  the
  amount  that  he  would  have  contributed to such system if he had been
  present and continuously engaged in the performance of the duties of his
  position during such period.
    (b) Such payments, other than those deducted from his salary or  other
  compensation  as such officer or employee, may be paid from time to time
  at any time while engaged in such ordered military duty or  within  five
  years  after  the date of termination of such ordered military duty, or,
  in the event of the death of  such  public  officer  or  employee  while
  engaged  in  ordered  military duty, such payments, or any part thereof,
  may be made by the named beneficiary or the legal representative of such
  public officer's or employee's estate within one year following proof of
  such death.
    (c) To the extent that such  contributions  are  paid,  absence  while
  engaged  in  the  performance  of  military  duty  shall  be  counted in
  determining the length of total service under such pension or retirement
  system.
    (d) Any  such  public  officer  or  employee,  while  engaged  in  the
  performance  of  ordered  military duty, or his beneficiary, as the case
  may be, shall be  entitled  to  all  the  benefits  of  the  pension  or
  retirement  system  of which he is a member except accidental disability
  retirement and accidental death benefit.