Reemployment in Private Industry; Various Types of Absences; Injunction to Compel; Attorney General's Aid

  1. Law
  2. Georgia Code
  3. Military, Emergency Management, and Veterans Affairs
  4. Military Affairs
  5. Personnel
  6. Rights, Privileges, and Prohibitions
  7. Reemployment in Private Industry; Various Types of Absences; Injunction to Compel; Attorney General's Aid

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  1. In the case of any person who has left or leaves a position, other than a temporary position, in the employ of any employer in order to perform military service and who:
    1. Received a certificate of completion of military service duly executed by an officer of the applicable force of the armed forces of the United States or by an officer of the applicable force of the organized militia;
    2. Is still qualified to perform the duties of the position; and
    3. Makes application for reemployment within 90 days after he or she is relieved from such service, if the position was in the employ of a private employer,

      the employer shall restore the person to the position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so.

  2. The benefits, rights, and privileges granted to persons in the military service by this Code section shall be extended to and be applicable to any person who, in order to participate in assemblies or annual training pursuant to Code Section 38-2-25 or in order to attend service schools conducted by the armed forces of the United States for a period or periods up to and including six months, temporarily leaves or has left his or her position, other than a temporary position, in the employ of any employer and who, being qualified to perform the duties of the position, makes application for reemployment within ten days after completion of the temporary period of service; provided, however, that no such person shall be entitled to the benefits, rights, and privileges for the attendance at any service school or schools exceeding a total of six months during any four-year period.
  3. The benefits, rights, and privileges granted to persons in the military service by this Code section shall be extended to and be applicable to any person who is or becomes a member of the organized militia or of a reserve component of the armed forces of the United States and who because of such membership is discharged by his or her employer or whose employment is suspended by his or her employer because of such membership and who, being qualified to perform the duties of the position, makes application for reemployment or termination of the period of his or her suspension within ten days after such discharge or suspension. In the event that the member of the organized militia or reserve component is serving on military duty at the time of receipt of notice of the discharge or suspension the aforesaid ten-day period within which application must be made shall not commence to run until the day next following the date of termination of such military duty.
  4. The benefits, rights, and privileges granted to persons in the military service by this Code section shall be extended to and be applicable to any person who is a member of the Georgia National Guard and who is called into active state service by the commander-in-chief of such force for a purpose identified in subsection (a) or (b) of Code Section 38-2-6 or Code Section 38-2-6.1 or who has been called to state sponsored active duty as part of the National Guard of another state by that state's Governor, and who because of such active state service is discharged by his or her employer or whose employment is suspended by his or her employer because of such active state service and who, being qualified to perform the duties of the position, makes application for reemployment or termination of the period of his or her suspension within ten days after such discharge or suspension. In the event that the member of the Georgia National Guard or a member of any other reserve component of the armed forces of the United States is serving in active state service at the time of receipt of notice of the discharge or suspension the aforesaid ten-day period within which application must be made shall not commence to run until the day next following the date of termination of such active state service.
  5. Any person who is restored to a position in accordance with this Code section shall be considered as having been on furlough, on leave of absence during his or her period of military service, performing temporary service under subsection (b), or discharged or suspended under subsection (c) or (d) of this Code section, shall be restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time the person entered the military service or commenced the temporary service or was so discharged or suspended, and shall not be discharged from the position without cause within one year after the restoration.
  6. If any private employer fails or refuses to comply with this Code section, the superior court of the county in which the private employer resides shall have the power, upon petition by the person entitled to the benefits of this Code section, to require specifically the employer, by injunction, mandatory or otherwise, to comply with this Code section, and may, as an incident thereto, compensate the person for any loss of wages or benefits suffered by reason of the employer's unlawful action. The court shall order a speedy hearing in any such case and may specially set it on the calendar. Any person claiming to be entitled to the benefits of this Code section may appear by his or her own counsel or, upon application to the Attorney General of the state, may request that the Attorney General appear and act on his or her behalf. If the Attorney General is reasonably satisfied that the person so applying is entitled to such benefits, he or she shall appear and act as attorney for the person in the amicable adjustment of the claim or in the filing of any petition and the prosecution thereof. In the hearing and determination of petitions under this Code section no fees or court costs shall be assessed against a person so applying for such benefits.

(Ga. L. 1955, p. 10, § 87; Ga. L. 1959, p. 114, §§ 8, 9; Ga. L. 1995, p. 730, § 1; Ga. L. 2016, p. 430, § 2/HB 831; Ga. L. 2017, p. 774, § 38/HB 323.)

The 2016 amendment, effective July 1, 2016, in subsection (d), substituted "service by the commander-in-chief of such force for a purpose identified in subsection (a) or (b) of Code Section 38-2-6 or Code Section 38-2-6.1 or who has been called to state-sponsored active duty as part of the National Guard of another state by that state's Governor," for "service pursuant to Code Section 38-2-6 or 38-2-6.1" in the first sentence and inserted "or a member of any other reserve component of the armed forces of the United States" in the second sentence.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentence of subsection (d).

Cross references.

- Priority of service designation for veterans and spouses, § 34-14-6.

Editor's notes.

- Ga. L. 2016, p. 430, § 1/HB 831, not codified by the General Assembly, provides: "This Act shall be known and cited as the 'Protecting Guardsmen's Employment Act.'"

Law reviews.

- For article, "Protecting America's Reservists, Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices," see 7 Ga. St. B.J. 10 (2002).

JUDICIAL DECISIONS

Suspension before scheduled military leave.

- O.C.G.A. § 38-2-280 offered no relief to an employee who was suspended before the employee took a scheduled military leave, who did not lose the employee's position to a replacement because the employee was gone for two weeks. Britt v. Georgia Power Co., 677 F. Supp. 1169 (N.D. Ga. 1987).

RESEARCH REFERENCES

ALR.

- Reemployment of discharged servicemen, 167 A.L.R. 124; 29 A.L.R.2d 1279.

Determination of seniority rights of employee as proper subject of declaratory suit, 172 A.L.R. 1247.

What is "cause" justifying discharge from employment of returning serviceman re-employed under sec. 9 of the Military Selective Service Act of 1967 (50 USC Appendix sec. 456), 9 A.L.R. Fed. 225.

Applicability to fringe benefits of Vietnam Era Veterans' Readjustment Assistance Act provision establishing veterans' reemployment rights (38 USCS sec. 2021), 83 A.L.R. Fed. 908.


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