2010 Wyoming Statutes
Title 19 - Defense Forces And Affairs
Chapter 11 - Military Service Member Protections

CHAPTER 11 - MILITARY SERVICE MEMBER PROTECTIONS

 

ARTICLE 1 - MILITARY SERVICE RELIEF ACT

 

19-11-101. Title.

 

As used in this article, "this article" means W.S. 19-11-101 through 19-11-124.

 

19-11-102. Purpose.

 

(a) In order to provide for, strengthen and expedite the national security under conditions which threaten the peace and security of the United States and to enable those citizens of this state who perform service in the uniformed services to more successfully devote their entire energy to the needs of the nation and state, provision is hereby made to provide reemployment rights and other benefits for persons who perform service in the uniformed services of the United States. It is herein declared to be the policy of the state of Wyoming that its citizens who serve their country and state and who leave their employment, homes and education shall not be penalized nor economically disadvantaged because of such service.

 

(b) The provisions of this article shall be liberally construed for the benefit of those called to serve in the federal service of the United States or in active state service. The purpose of this article is to prevent members from being disadvantaged and to prohibit discrimination against persons because of their uniformed service when they return to civilian life. It is the sense of the legislature that the state of Wyoming should be a model employer in carrying out the provisions of this article.

 

(c) The provisions of this article are intended to be supplemental to any rights that persons called to military service have under any applicable federal statutes, including the Servicemembers Civil Relief Act, Public Law 108-189, the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301 et seq., and under any other applicable laws of this state.

 

(d) Nothing in this article shall supersede, nullify or diminish any federal or state law, including any local law or ordinance, contract, agreement, policy, plan, practice or other matter that establishes a right or benefit that is more beneficial to, or is in addition to a right or benefit provided for such person in this article.

 

(e) This article supersedes any local law or ordinance, contract, agreement, policy, plan, practice or other matter that reduces, limits or eliminates in any manner any right or benefit provided by this article, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.

 

19-11-103. Definitions.

 

(a) As used in this article, unless the context clearly requires otherwise:

 

(i) "Appointed official" means a person holding an appointed position or office with any department, board, commission or agency of the state, or of any political subdivision or municipal corporation, when the office or position is established by the constitution or laws of this state;

 

(ii) "Benefit, benefit of employment, rights and benefits" means any advantage, profit, privilege, gain, status, account or interest other than wages or salary for work performed that accompanies by reason of an employment contract or agreement or an employer policy, plan or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations and the opportunity to select work hours or location of employment;

 

(iii) "Compensation" means normal or regular base pay, but does not include overtime, per diem, differential pay or any other allowance for other expense, and for firemen, policemen and deputy sheriffs shall also include supplemental pay;

 

(iv) "Elected official" means a person holding an office in a governmental entity of the state or any of its political subdivisions which is filled by the vote of the appropriate electorate;

 

(v) "Employee" means any person employed by any private or public employer, including an elected or appointed official;

 

(vi) "Employment" means a position as an employee with any private or public employer, including commencement of employment, by any actions in furtherance of employment, once an offer has been extended by an employer and accepted by an employee. Service in the military service greater than thirty (30) days shall not be considered secondary employment;

 

(vii) "Public retirement system" means any public retirement or pension system, fund or plan maintained primarily for officers and employees of the state of Wyoming or of any political subdivision thereof, or any district, board, commission or other agency of either, or of any other such public entity;

 

(viii) "Reasonable efforts", in the case of actions required of an employer under this article, means actions, including training provided by an employer, that do not place an undue hardship on the employer;

 

(ix) "Service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time national guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty and active state service by members of the national guard who are activated pursuant to a call of the governor as provided for by law;

 

(x) "Undue hardship", in the case of actions taken by an employer, requires consideration of the following factors:

 

(A) Actions requiring significant difficulty or expense, when considered in light of the nature and cost of the actions needed under this article;

 

(B) The overall financial resources of the facility or facilities involved in the provision of the action;

 

(C) The number of persons employed at such facility;

 

(D) The effect on expenses and resources or the impact otherwise of such action upon the operation of the facility;

 

(E) The overall financial resources of the employer;

 

(F) The overall size of the business of an employer with respect to the number of its employees;

 

(G) The number, type and location of its facilities;

 

(H) The type of operation or operations of the employer, including the composition, structure and functions of the work force of such employer; and

 

(J) The geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the employer.

 

(xi) "Uniformed services" means the armed forces, the army national guard and the air national guard, the commissioned corps of the public health service and any other category of persons designated by the president in time of war or emergency;

 

(xii) "This act" means W.S. 19-11-101 through 19-11-124.

 

19-11-104. Discrimination prohibited.

 

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform or has an obligation to perform service in an uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service application for service or obligation.

 

(b) An employer shall be considered to have denied a person initial employment, reemployment, retention in employment, promotion or a benefit of employment in violation of this section if the person's membership, application for membership, service, application for service or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, performance of service, application for service or obligation.

 

(c) An employer may not discriminate in employment against or take an adverse employment action against any person because such person has taken an action to endorse a protection afforded any person under this act, has testified or otherwise made any statement in or in connection with any proceeding under this act, has assisted or otherwise participated in an investigation under this act or has exercised a right provided for in this act. The prohibition provided for in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services and shall apply to any position of employment, including a position that is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

 

19-11-105. Awarding of costs and fees.

 

(a) In any administrative or court proceeding which is brought by or against an employer or prior employer in connection with a claim under W.S. 19-11-104 or 19-11-111, the prevailing member may be awarded a judgment or a settlement against an employer or prior employer for:

 

(i) Reasonable administrative costs incurred in connection with such administrative proceeding within the employer; and

 

(ii) Reasonable litigation costs incurred in connection with such administrative proceeding within the employer or prior employer.

 

(b) A judgment for reasonable litigation costs shall not be awarded under subsection (a) of this section in any court proceeding unless the court determines that the prevailing party has exhausted the administrative remedies available to such party within the employer or prior employer.

 

(c) An award under subsection (a) of this section shall be made only for reasonable litigation and administrative costs which are allocable to the employer or prior employer and not to any other party.

 

(d) No award for reasonable litigation and administrative costs may be made under subsection (a) of this section with respect to any portion of the administrative or court proceeding during which the prevailing party has unreasonably protracted such proceeding.

 

(e) For purposes of this section:

 

(i) "Administrative proceeding" means any administrative procedure or other action before the employer or former employer;

 

(ii) "Court proceedings" means any civil action brought in a court within the state of Wyoming;

 

(iii) "Position of the employer or former employer" means the position taken by the employer or former employer in an administrative or judicial proceeding;

 

(iv) "Prevailing party" means any current or former member of the Wyoming national guard in any proceeding to which subsection (a) of this section applies who establishes that the position of the employer or former employer in the proceeding was not substantially justified, and:

 

(A) Has substantially prevailed with respect to the action in controversy; or

 

(B) Has substantially prevailed with respect to the most significant issue or sets of issues presented.

 

(v) "Reasonable administrative costs" means any administrative fees or similar charges imposed by the employer or former employer and expenses, costs and fees described as reasonable litigation costs identified in paragraph (vi) of this subsection;

 

(vi) "Reasonable litigation costs" includes reasonable court costs and, based on prevailing market rates for the kind or quality of services furnished:

 

(A) The reasonable expenses of expert witnesses in connection with a court proceeding, except that no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the employer or prior employer if the employer or prior employer utilized expert witnesses;

 

(B) The reasonable cost of any study, analysis, report or project which is found by the court to be necessary for the preparation of the party's case; and

 

(C) Reasonable attorney's fees, except that such fees shall not be in excess of seventy-five dollars ($75.00) per hour unless the court determines that an increase in the cost of living or a special factor, such as limited availability of qualified attorneys for such proceeding, justifies a higher rate.

 

(f) An award for reasonable litigation costs shall be payable under this section in the same manner as such an award by a district court.

 

(g) For purposes of this section, in the case of multiple actions which could have been joined or consolidated, such actions shall be treated as one (1) court proceeding regardless of whether such joinder or consolidation actually occurs, unless the court in which such action is brought determines, in its discretion, that it would be inappropriate to treat such actions or cases as joined or consolidated.

 

(h) An order granting or denying, in whole or part, an award for reasonable litigation or administrative costs under subsection (a) of this section in a court proceeding may be incorporated as part of the decision or judgment in the court proceeding and shall be subject to appeal in the same manner as the decision or judgment. A decision granting or denying, in whole or in part, an award for reasonable administrative costs under subsection (a) of this section in an administrative proceeding by the employer or former employer shall be subject to appeal by bringing the cause of action to the district court.

 

19-11-106. Compensation.

 

(a) Any private or public employer in this state is hereby authorized to pay compensation to any employee who leaves employment to perform service in the uniformed services. If the employer elects to pay the compensation, it shall be paid on a uniform basis to all such employees of that employer.

 

(b) The payment of compensation subsequent to the employee's release from service in the uniformed services and upon reemployment with his former employer shall be governed by the provisions of this act.

 

(c) The payment of compensation and benefits to elected officials shall be paid in accordance with the provisions of Wyoming constitution and the laws of this state.

 

19-11-107. Leave status.

 

(a) Any employee who leaves employment in order to perform service in the uniformed services shall be treated as being on military leave of absence during the period of service in the uniformed services, provided that he applies for reemployment in accordance with this act.

 

(b) The employee, at his option, may use any amount or combination of his accrued annual leave, paid military leave, vacation or compensatory leave standing to his credit during the period of service in the uniformed services.

 

(c) The employee shall continue to accrue sick leave, annual leave, vacation leave or military leave on the same basis as he would have accrued such leave during the period of service in the uniformed services.

 

(d) No employer may deduct, from the compensation paid to an employee in service in the uniformed services, any cost of replacing the employee during said employee's service in the uniformed services.

 

19-11-108. Leave of absence for state, city or county officers and employees; training programs.

 

(a) Any member of the Wyoming national guard or United States military forces reserve who is an officer or employee of this state or any political subdivision, municipal corporation or any public agency or entity of the state, including community colleges, shall be given a military leave of absence with pay at the regular salary or wage which the employee normally receives, not to exceed fifteen (15) calendar days in any one (1) calendar year to perform service in the uniformed services in addition to any other leave or vacation time to which the person is otherwise entitled.

 

(b) Subject to the conditions prescribed in paragraphs (c)(i) through (v) of this section, any officer or employee of the state or any political subdivision, municipal corporation or public agency of the state who has been employed for one (1) year and who is a member of the national guard or any other component of the military forces of the state, a member of the reserve forces of the United States or who is inducted into the military service of the United States, is entitled to leave of absence from his public office or employment without pay but without loss of seniority, status, efficiency rating, vacation, sick leave or other benefits while he is engaged in active military training or service ordered or authorized by proper authority pursuant to law exceeding fifteen (15) days in any calendar year. Such leave is in addition to any other military leave or vacation time to which the officer or employee may be entitled by law if the required military service is satisfactorily performed, which is presumed unless the contrary is established.

 

(c) Upon completion of service as provided by subsection (b) of this section, the officer or employee shall be reinstated to the public position held at the time of entry into service or a position of like seniority, status and pay, if available, upon the following conditions:

 

(i) The position has not been abolished or the term thereof, if limited, has not expired;

 

(ii) He is not physically or mentally disabled from performing the duties of the position;

 

(iii) He makes written application for reinstatement to the appointing authority within thirty (30) days following release from military service or within ninety (90) days after discharge from hospitalization or medical treatment which immediately follows the termination of, and results from, the service but not to exceed one (1) year and ninety (90) days after termination of service notwithstanding hospitalization or medical treatment;

 

(iv) He submits an honorable discharge or other release by proper authority indicating his military service was satisfactory; and

 

(v) The military service does not exceed five (5) years plus any period of additional service imposed by law.

 

(d) Upon reinstatement, the officer or employee has the same rights with respect to accrued and future seniority, status, efficiency rating, vacation, sick leave and other benefits as if he had been actually employed during the time of leave. During the absence, the state of Wyoming or a political subdivision shall discontinue its share of payments for social security, insurance of any type and state retirement unless the employee elects to contribute to the state retirement plan during his absence and the job or office remains open pending his return in which case the state of Wyoming or a political subdivision will likewise contribute its share. No officer or employee reinstated shall be removed or discharged within one (1) year thereafter except for cause, after notice and hearing, but this shall not operate to extend a term of service or office limited by law.

 

(e) This section shall be liberally construed in favor of the member of the Wyoming national guard or United States military forces who is an officer or employee of this state or any political subdivision, municipal corporation or any public agency of the state.

 

19-11-109. Life and health and accident insurance.

 

(a) The provisions of this section shall be applicable to any group life insurance, group insurance, family group, blanket and franchise health and accident insurance and health care services plan provided by any private or public employer in this state.

 

(b) Any employee shall have the right to maintain the insurance or plan coverage enumerated in subsection (a) of this section by furnishing his employer with sums equal to that which would have been deducted from his compensation for such coverage. Upon timely receipt of the employee's contributions required by the insurance policy or plan provisions, the employer shall provide the applicable insurer or health maintenance organization with those contributions plus an amount equal to what the employer would have contributed during the period of service in the uniformed services. The employee shall notify his employer of his election to continue insurance or plan coverage at the time he enters service in the uniformed services.

 

(c) Family members or dependent children of an employee who are covered by any insurance policy or plan enumerated in subsection (a) of this section who are subsequently called to service in the uniformed services shall continue to be considered family members or dependents under the provisions of the policy or plan without any lapse of coverage, provided that all required contributions are paid in accordance with the policy or plan provisions.

 

(d) Any employee who leaves employment to perform service in the uniformed services and who reapplies for coverage after release shall be reinstated, including all of his family members and dependents previously covered, with the group insurance program or medical and health care coverage without any clause or restriction because of a preexisting condition.

 

(e) This section shall not be construed to invalidate the provision of any life insurance policy excluding or restricting coverage in the event of death.

 

(f) This section shall not invalidate any legitimate exclusions to coverage of any policy or plan enumerated in subsection (a) of this section.

 

19-11-110. Worker's compensation benefits; supplementary earnings; voluntary suspension.

 

(a) Any employee receiving supplemental earnings benefits pursuant to the provisions of the Worker's Compensation Act who is called to service in the uniformed services, is found to be medically deployable militarily and is subsequently deployed, shall, at his option, be allowed to suspend any such benefit payments for which he would otherwise be eligible during his period of service in the uniformed services.

 

(b) The director of the office of workers' compensation of the department of employment shall, by rule, prescribe the method by which such employee may request the suspension of benefits.

 

(c) The employee shall be restored to the same benefits he would have received had he not been called to duty in the uniformed services, provided he makes an application to resume such benefits after his release from service in the uniformed services or release from hospitalization incidental to his service in the uniformed services.

 

19-11-111. Right of reinstatement to former employment.

 

(a) Any person who is absent from a position of employment by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this article within ten (10) days of application for reemployment if all of the following conditions are met:

 

(i) The person or the authorized officer of the uniformed service in which the service is performed has given advance written or verbal notice of service to the person's employer;

 

(ii) The cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five (5) years;

 

(iii) Except as provided in subsection (f) of this section the person reports to, or submits an application for reemployment to, the employer in accordance with subsection (e) of this section;

 

(iv) If the person has been discharged from the uniformed services, the discharge was an honorable discharge or a discharge under honorable conditions.

 

(b) Notice is not required under subsection (a) of this section if the giving of the notice is precluded by military necessity or, under all of the relevant circumstances, the giving of the notice is otherwise impossible or unreasonable. A determination of military necessity for the purposes of this subsection shall be made pursuant to regulations prescribed by the uniformed services and shall not be subject to judicial review.

 

(c) Subsection (a) of this section shall apply to a person who is absent from a position of employment by reason of service in the uniformed services if the person's cumulative period of service in the uniformed services with respect to the employer relationship for which a person seeks reemployment does not exceed five (5) years, except that the period of service shall not include any service:

 

(i) That is required, beyond five (5) years, to complete an initial period of obligated service;

 

(ii) During which the person was unable to obtain orders releasing the person from a period of service in the uniformed services before the expiration of the five (5) year period and the inability was through no fault of the person;

 

(iii) Performed to fulfill additional training requirements determined to be necessary for professional development or for completion of skill training or retraining; or

 

(iv) Performed by a member of a uniformed service who has been:

 

(A) Ordered to or retained on active duty in time of war or national or state emergency;

 

(B) Ordered to or retained on active duty other than for training under any provision of law during a war or during a national emergency declared by the president or the congress or emergency declared by the governor; or

 

(C) Ordered to active duty in support of a critical mission or requirement of the uniformed services.

 

(d) An employer is not required to reemploy a person under this section if the employer demonstrates that:

 

(i) The employer's circumstances have so changed as to make reemployment impossible or unreasonable;

 

(ii) The reemployment would impose an undue hardship on the employer; and

 

(iii) The employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

 

(e) Subject to subsection (f) of this section, a person referred to in subsection (a) of this section shall, upon the completion of a period of service in the uniformed services, notify the employer referred to in subsection (a) of this section of the person's intent to return to a position of employment with the employer as follows:

 

(i) In the case of a person whose period of service in the uniformed services was less than thirty-one (31) days, by reporting to the employer in the following manner:

 

(A) Not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight (8) hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence;

 

(B) As soon as possible after the expiration of the eight (8) hour period referred to in subparagraph (A) of this paragraph, if reporting within that period is impossible or unreasonable through no fault of the person.

 

(ii) In the case of a person who is absent from a position of employment for a period of any length for the purposes of an examination to determine the person's fitness to perform service in the uniformed services, by reporting in the manner and time referred to in paragraph (i) of this subsection;

 

(iii) In the case of a person whose period of service in the uniformed services was for more than thirty (30) days but less than one hundred eighty-one (181) days, by submitting an application for reemployment with the employer not later than fourteen (14) days after the completion of the period of service or if submitting such application within such period is impossible or unreasonable through no fault of the person, the next first full calendar day when submission of such application becomes possible; or

 

(iv) In the case of a person whose period of service in the uniformed services was for more than one hundred eighty-one (181) days, by submitting an application for reemployment with the employer not later than ninety (90) days after the completion of the period of service.

 

(f) A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed service, shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer, in the case of a person described in paragraphs (e)(i) and (ii) of this section or submit an application for reemployment with his employer, in the case of a person described in paragraphs (e)(iii) and (iv) of this section. Except as provided in paragraph (e)(ii) of this section, such period of recovery may not exceed two (2) years. The two (2) years shall be extended by the minimum time required to accommodate the circumstances beyond such person's control which makes reporting within the period specified in paragraph (e)(i) of this section impossible or unreasonable. A person who fails to report or apply for employment or reemployment within the appropriate period specified in subsections (e) and (f) of this section shall not automatically forfeit his entitlement to the rights and benefits referred to in subsection (a) of this section but shall be subject to the conduct, rules, established policy and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.

 

(g) A person who submits an application for reemployment in accordance with paragraph (e)(iii) or (iv) of this section shall provide, upon request by the person's employer, to the person's employer documentation to establish the following:

 

(i) The person's application is timely;

 

(ii) The person has not exceeded the service limitations set forth in paragraph (a)(ii) of this section, except as permitted under subsection (c) of this section; and

 

(iii) If the person has been discharged from the uniformed service, the discharge was an honorable discharge or a discharge under honorable conditions.

 

(h) Documentation of any matter referred to in subsection (g) of this section that satisfies regulations prescribed by the adjutant general shall satisfy the documentation requirements in subsection (g) of this section. Failure to provide documentation that satisfies regulations prescribed by the adjutant general shall not be a basis for denying reemployment in accordance with the provisions of this section if the failure occurs because the documentation does not exist or is not readily available at the time of the request of the employer. If, after reemployment, documentation becomes available that establishes that the person does not meet one (1) or more of the requirements referred to in paragraph (g)(i), (ii) or (iii) of this section, the employer of the person may terminate the employment of the person and the provision of any rights or benefits afforded the person under this section. An employer who reemploys a person absent from a position of employment for more than ninety (90) days may require that the person provide the employer with the documentation referred to in this subsection and subsection (g) of this section before beginning to treat the person as not having incurred a break in service for pension purposes. An employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available.

 

(j) The right of a person to reemployment under this section shall not entitle such person to retention, preference or displacement rights over any person with a superior claim under the provisions of title 5, United States Code, relating to veterans and other preference eligibility.

 

(k) In any determination of a person's entitlement to protection under this section, the timing, frequency and duration of the person's training or service, or the nature of such training or service, including voluntary service, in the uniformed services, shall not be a basis for denying protection under this section if the service does not exceed the limitations set forth in subsection (c) of this section the notice requirements established in paragraph (a)(i) of this subsection and the notification requirements established in subsection (e) of this section are met.

 

(m) Any employee, who applies for reemployment in accordance with the provisions of this law, shall be entitled to complete any training program that was applicable to his former position of employment during his period of service in the uniformed services.

 

(n) Any employee who is restored to or employed in a position in accordance with the provisions of this section shall not be discharged from such position without cause within one (1) year after such restoration or reemployment.

 

(o) Notwithstanding any provision of law to the contrary, an employee shall be reinstated to his former position as a teacher immediately upon application and shall be entitled to receive that compensation which he would have received if he would have been employed on a nine (9) month basis and had prorated his salary over twelve (12) months. The employee shall be reinstated prior to the end of the twelve (12) months.

 

(p) A person who is reemployed under this section is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority, rights and benefits that such person would have attained if the person had remained continuously employed.

 

19-11-112. Retirement credit.

 

(a) Any employee who completes his service in the uniformed services and applies for reemployment upon release from service in the uniformed services or discharge from hospitalization incidental to his service in uniformed service shall be entitled to receive creditable service for such period of service in the uniformed services toward vesting and computation of benefits in the retirement system, pension fund or employee benefit plan applicable to his employment, as provided for in this section.

 

(b) No employee shall receive more than a total of five (5) years of military service credit in the retirement system, pension fund or employee benefit plan applicable to his employment credited under this section.

 

19-11-113. Contributions, payment during military service.

 

Any employee may, at his option, pay the required employee contributions to the retirement system, pension fund or employee benefit plan applicable to his employment during his period of service in the uniformed services if the payment of contributions is permitted by the Internal Revenue Code. The employee shall timely furnish his employer with sums equal to that which would have been deducted from his compensation for retirement system coverage as required under the public retirement system or employee benefit plan. Upon receipt the employer shall remit the employee contributions to the applicable system or plan, including the employer contributions that would have been contributed on behalf of the employee. The employee shall notify his employer of his election to pay the required employee contributions to the applicable system or plan at the time he enters service in the uniformed services.

 

19-11-114. Employee pension benefit plans.

 

(a) Every private employer in this state who maintains a defined benefit plan as defined by 29 U.S.C. 1002(35) shall credit the employee with his period of service in the uniformed services towards retirement eligibility and vesting under the plan, including the computation of any retirement benefits due under the express terms of the plan, when the accrued benefits due under the plan are derived from employer contributions to the plan. If the defined benefit plan provides benefits derived from employer and employee contributions to the plan, the employee shall be credited with his period of service in the uniformed services towards retirement eligibility and vesting under the plan, including the computation of any retirement benefits due under the express terms of the plan, provided that the employer contributions and the mandatory contributions of the employee are made to the plan.

 

(b) If any private employer maintains an individual account plan or a defined contribution plan, as defined by 29 U.S.C. 1002(34), the employee shall be credited with his period of service in the uniformed services towards retirement eligibility under the express terms of the plan upon payment of the designated contributions to the plan and if such credit is permitted by the Internal Revenue Code.

 

(c) An employee may be required to pay the employee cost, if any, of any funded benefit continued pursuant to this section to the extent other employees on furlough or leave of absence are so required.

 

19-11-115. State retirement systems; payment of contributions; interest.

 

(a) Any employee who did not elect to make employee contributions pursuant to W.S. 19-11-113 to the state retirement system applicable to his employment during his period of service in the uniformed services shall be entitled to receive credit for his service in the uniformed services toward establishing retirement eligibility and for computation of benefits upon payment into the system in an amount equal to the employee contributions that would have been paid had the employee continued in employment and not been called to service in the uniformed services, together with interest thereon at the valuation interest rate of the system or plan in effect at the time payment is made. The contributions shall be based on the salary including any increases in compensation that the employee would have received had he remained in employment during the period of service in the uniformed services.

 

(b) Upon payment by the employee of the employee contributions and interest as provided in subsection (a) of this section the employer shall pay to the retirement system an amount equal to the employer contributions that the employer would have paid to the retirement system had the employee remained in service, together with interest thereon, at the valuation interest rate in effect at the time payment is made. The contributions shall be based on the salary the employee would have received during the period of service in the uniformed services, including any increases in compensation that the employee would have received had he remained in employment during the period of service in the uniformed services. The employer contributions and interest due to the system shall be paid within thirty (30) days after the employee has paid all of the contributions due to the system or fund.

 

(c) All employee contributions and interest due thereon made in payment for service in the uniformed services credit in accordance with subsection (a) of this section must be received by the system within five (5) years of his reemployment.

 

(d) Should the employee fail to make the required contributions within four (4) years, the credit shall only count toward determining eligibility for retirement benefits. Any unpaid actuarial cost to the retirement system shall be borne by the employers through reflection in the employer rate established by the state retirement system's actuarial committee.

 

(e) Notwithstanding any other requirements in W.S. 19-11-113 or 19-11-114 or this section relating to payment of retirement contributions to a public or private retirement system, employer and employee contributions for any public or private retirement or pension system plan, not to exceed five thousand dollars ($5,000.00) per person per year, may be paid by the Wyoming adjutant general, if the payment is permitted by the Internal Revenue Code, for any person whose primary occupation is that of a first responder and who is called or ordered into the federal service of the United States under title 10 of the United States Code.

 

(f) The provisions of subsection (e) of this section shall also apply to any Wyoming resident whose primary occupation is that of a first responder when that person is called or ordered into federal service with a national guard unit in any state in the United States. The adjutant general shall promulgate rules and regulations to provide a method for application for persons not serving in the Wyoming national guard.

 

(g) The adjutant general shall report annually, no later than October 1, to the joint transportation, highways and military affairs interim committee. The report shall include the number of persons who qualified for the contributions under subsections (e) and (f) of this section, a listing of the civilian classifications of the persons applying for the contributions and the total amount expended for the contributions.

 

19-11-116. Payment of death and survivor benefits; state retirement.

 

(a) The employee's period of service in the uniformed services shall be counted as creditable service in the state retirement system in which he was a member for determining eligibility for death and survivor benefits and in the computation of benefits, provided that the following conditions are satisfied:

 

(i) The beneficiary of the death or survivor benefits shall provide payment of the unpaid portion of the contributions of the deceased member. The beneficiary may agree in writing to have the payment of the unpaid portion of the contributions of the deceased member deducted from the benefits over a period not to exceed four (4) years. The beneficiary may pay, in the alternative, the actuarial cost of such additional credit in a lump sum prior to the distribution of benefits;

 

(ii) If there is more than one (1) beneficiary a written agreement to pay the unpaid contributions of the deceased member shall be unanimous. In the event that a recipient is a minor child the legal guardian of the minor child may express consent for the minor child;

 

(iii) The board of trustees of every state retirement system shall adopt a written policy covering all beneficiaries' and survivors' rights to pay the required contributions in order to have the employee's military service computed in the computation of any death or survivor benefits payable under the state retirement system.

 

(b) If all of the conditions of subsection (a) of this section are satisfied the employer shall pay the employer contributions in a manner consistent with this section.

 

(c) If the beneficiary of the death or survivor benefits of the deceased member elects not to pay the employee contributions due the system on account for such service in the uniformed services credit, the computation of death and survivor benefits shall be based on the actual service of the member in the system prior to his call to service in the uniformed services. The death or survivor benefits provided for herein shall be due and payable upon the death of the member.

 

(d) If the application of any provision set forth in this section results in an unpaid actuarial cost to the retirement system, it shall be borne by the employers through reflection in the employer rate established by the state retirement system's actuarial committee.

 

19-11-117. Inapplicability to deferred retirement option plans; state retirement.

 

The provisions of this article are inapplicable with respect to employees who are participants in a deferred retirement option plan.

 

19-11-118. License validity; renewals, suspension of fees.

 

The payment of any reinstatement or licensing fee or the application for renewal of any license imposed by the state or any public or governmental entity which the person who performs service in the uniformed services validly holds at the time he enters service in the uniformed services shall be suspended until ninety (90) days after his release from service in the uniformed services or discharge from hospitalization incidental to his service in the uniformed services, provided that the person complies with all of the licensing requirements including the payment of fees before the expiration of ninety (90) days after his release from service in the uniformed services or discharge from hospitalization incidental to his service in the uniformed services. Any license covered by this section which that person validly held at the time he entered service in the uniformed services shall remain in force and effect until ninety (90) days after his release from service in the uniformed services, provided that the licensing requirements are complied with, including the payment of any licensing and renewal fees owed.

 

19-11-119. Professional and occupational licenses; renewal fees waived; educational requirements.

 

The person who performed service in the uniformed services shall be exempted from the payment of any reinstatement or licensing renewal fee required by any profession or occupation governed by title 33 of the Wyoming statutes or by other law or ordinance applicable to any such person who performed service in the uniformed services during his period of service in the uniformed services except those licensing or renewal fees owed for the year in which he is released from service in the uniformed services or discharged from hospitalization incidental to his service in the uniformed services. The person who performed service in the uniformed services shall have ninety (90) days after his release from service in the uniformed services or hospitalization incidental to his service in the uniformed services to pay the licensing or renewal fees then owed. The person who performed service in the uniformed services shall be exempted from compliance with any continuing educational requirements applicable to such license during his period of service in the uniformed services except those required for the year in which he is released from service in the uniformed services or discharged from hospitalization incidental to his service in the uniformed services. The person who performed service in the uniformed services shall complete such requirements within one hundred eighty (180) days from his release from service in the uniformed services or discharge from hospitalization incidental to his service in the uniformed services. Any applicable license shall continue in force and effect provided that both the renewal fees and the educational requirements are completed within the periods provided herein.

 

19-11-120. Academic penalties prohibited.

 

(a) No student member of any uniformed service of the United States shall have his education, including but not limited to colleges and universities, vocational or technical or trade schools or secondary educational institutions, unnecessarily disrupted because of his service in the uniformed services. No undue penalties shall be assessed because of his service in the uniformed services. No student shall forfeit, and shall be entitled to reimbursement for, any fees or education expenses if such student is ordered into active state service for a period of more than thirty (30) consecutive days or active federal service pursuant to a presidential call or mobilization.

 

(b) The enforcement of this section shall be reserved for the appropriate governing body having jurisdiction over the student and shall implement the intent expressed herein.

 

19-11-121. District courts; jurisdiction; venue; preference docket.

 

(a) In the case of an action against the state, the district court in which the state or any of its political subdivisions exercises authority or conducts its business shall have jurisdiction to hear actions to enforce the provisions of this article. In the case of a private employer, the appropriate district court is the district court for any district in which the person in the uniformed services is employed.

 

(b) The district courts of the state shall have jurisdiction upon the filing of a complaint, motion, petition or other appropriate pleading by or on behalf of the person claiming a right or benefit under this article to require the employer to:

 

(i) Comply with the provisions of this article;

 

(ii) Compensate the person for any loss of wages or benefits suffered by reason of such employer's failure to comply with the provisions of this article;

 

(iii) Pay the person an amount equal to the amount of lost wages or benefits as liquidated damages if the court determines that the employer's failure to comply with the provisions of this article was willful.

 

(c) Any compensation awarded under paragraphs (b)(i), (ii) and (iii) of this section shall be in addition to and shall not diminish any of the other rights and benefits provided for in this article.

 

(d) All district and appellate courts shall give preference in scheduling such actions upon the motion of any person in the uniformed services, or his attorney, who presents certification that the person has performed service in the uniformed services or is in service in the uniformed services.

 

19-11-122. Servicemembers Civil Relief Act; application to national guard; penalty for violation of rights afforded to guard members; enforcement; preferences.

 

(a) Members of the Wyoming national guard ordered to active state service by the state or federal government for a period of more than thirty (30) consecutive days shall have all protections afforded to persons in the military service of the United States under the Servicemembers Civil Relief Act, Public Law 108-189. Except as provided in subsection (b) of this section, nothing in this subsection shall be construed to authorize the imposition of any penalty under the Servicemembers Civil Relief Act for violation of the protections afforded to members of the Wyoming national guard pursuant to this subsection. As used in this subsection, "active state service" means as defined in W.S. 19-7-101(a)(v).

 

(b) Any person who knowingly violates the protections provided to members of the Wyoming national guard pursuant to subsection (a) of this section shall be guilty of a misdemeanor punishable by a fine not to exceed one thousand dollars ($1,000.00).

 

(c) The protections afforded to members of the Wyoming national guard pursuant to subsection (a) of this section may serve as the basis for an action or as a defense. The courts of this state that would otherwise have jurisdiction over a case shall have jurisdiction over proceedings involving the Servicemembers Civil Relief Act and the Uniformed Services Employment and Reemployment Rights Act, which shall be governed by the rules applicable to ordinary proceedings.

 

(d) The courts shall give preference in scheduling such proceedings, upon the motion of any person in the uniformed services, or the person's attorney, who presents certification that the person has performed service in the uniformed services or is in service in the uniformed services.

 

19-11-123. Award of attorney fees.

 

In any proceeding employed to enforce any of the provisions of this act, the court shall award reasonable litigation expenses including reasonable attorney's fees.

 

19-11-124. Vacancies in elected office.

 

No vacancy in the office of an elected official shall be deemed to have occurred by reason of his absence when the official is called to service in the uniformed services. No change in the residence of an elected official is deemed to have occurred by reason of his service in the uniformed services.

 

ARTICLE 2 - ACKNOWLEDGMENT OF INSTRUMENTS

 

19-11-201. Power of attorney.

 

If any person who performs service in the uniformed services as principal executes a power of attorney designating an agent to act on his behalf in conformity with the law of Wyoming, such power of attorney is deemed legally sufficient and enforceable as to the powers granted the agent therein and shall be honored by any person, corporation or institution to whom the power of attorney is presented.

 

19-11-202. Acknowledgment of instrument by members of armed forces and their dependents before commissioned officer; form of certificate.

 

In addition to the acknowledgment of instruments in the manner and form otherwise authorized by law, persons who perform service in the uniformed services or their dependents, wherever located, may acknowledge the instruments before any commissioned officer who performs service in the uniformed services with the rank of second lieutenant or higher in the army, air force or marine corps, or ensign or higher in the navy or coast guard. The instrument is not invalid for failure to state therein the place of execution or acknowledgment. No authentication of the officer's certificate of acknowledgment is required, but the officer taking the acknowledgment shall endorse thereon or attach thereto a certificate substantially in the following form:

 

On this .... day of ...., (year), before me, ...., the undersigned officer, personally appeared ...., Serial No. (If any) ...., known to me (or satisfactorily proven) to be performing service in the uniformed services (A dependent of ...., Serial No. (If any) ...., a person performing service in the uniformed services) and to be the person whose name is subscribed to the within instrument and acknowledged that .... he .... executed the same for the purposes therein contained, and the undersigned does further certify that he is, at the date of this certificate, a commissioned officer of the rank stated below and is performing service in the uniformed services.

 

.... (Signature of the officer)

 

.... (Rank and Serial No. of officer)

 

and command to which attached.

 

19-11-203. Death of principal not to affect acts performed in good faith under power of attorney.

 

No person acting under any power of attorney made by any person who performs service in the uniformed services, during the time the principal remains in the armed forces, shall be held liable for an act upon the ground that the principal was not then alive if the act was performed in good faith and without actual knowledge of the death of the principal. The fact that any principal has been reported missing shall not in itself be considered as indicating the death of the principal.

 

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