191101. Renumbered as 197204 by Laws 1998, ch. 99, § 191102. Amended and renumbered as 198103 by Laws 1998, ch. 99, § 3



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1910101.  Organization by governor; appointment of council; removal; control.
(a)  If the national guard of Wyoming is ordered into the service of the United States, the governor may organize and maintain within this state during that period, under such regulations as the secretary of defense may prescribe, such military forces as may be authorized by the secretary of defense or as the governor deems necessary for the defense of the state. The forces shall be known as the Wyoming state guard. Insofar as practicable, the existing laws, rules and regulations governing the national guard shall be applied to the control of the Wyoming state guard. The force shall be of such strength as directed by the secretary of defense, with such expansion in the future as may be authorized. The Wyoming state guard shall be armed, trained and equipped in such manner as may be prescribed by the secretary of defense or the governor of Wyoming.
(b)  For the purpose of coordinating desirable national defense activities, the governor shall appoint a Wyoming state council of defense. The council, subject to the approval of the governor, may organize necessary subordinate branches and establish rules and regulations for the operation of the council and subordinate branches, and assist in all matters pertaining to the Wyoming state guard and other state or national defense activities not otherwise covered by law. Appointment to the council of defense is not limited by any requirements as to prior military or naval service. The governor may remove any member as provided in W.S. 91202.
(c)  The adjutant general of Wyoming shall be in control of the Wyoming state guard, subordinate only to the governor in matters pertaining thereto. He is further charged with the responsibility of coordinating all other defense activities as are provided by W.S. 198103 and 1910101 through 1910108.
1910102.  Pay and allowances.
Members of the Wyoming state guard, when serving under orders of the governor of Wyoming, shall receive out of the general fund of Wyoming not otherwise appropriated the same pay and allowances authorized for personnel of equal rank in the national guard.
1910103.  Requisition of arms and supplies.
The governor may requisition or purchase from the department of defense or other sources such arms, equipment and supplies as are necessary to equip the Wyoming state guard and may make available to such forces the facilities and equipment of state armories and other state premises and property as are available and necessary.
1910104.  Guard not required to serve outside state; exceptions.
(a)  The Wyoming state guard is not required to serve outside the boundaries of this state except:
(i)  Upon request of the governor of another state, the governor of this state may order any portion of the force to assist the military or police forces of the other state which are actually engaged in the defense of the other state. The forces may be recalled at the discretion of the governor of Wyoming;
(ii)  As provided by W.S. 198103(b); or
(iii)  As ordered by the governor of this state in accordance with the provisions of the Emergency Management Assistance Compact.
(b)  No provision relative to the Wyoming state guard shall be construed as authorizing those forces, or any part thereof, to be called, ordered or in any way drafted into the military service of the United States, but no person is exempt from military service under the laws of the United States by reason of enlistment or commission in the Wyoming state guard.
1910105.  Oath; term of enlistment; eligibility; appointment of officers; removal; employees of state or political subdivisions.
(a)  The oath to be taken by members of the Wyoming state guard, shall be substantially the same as that prescribed for members of the Wyoming national guard, substituting the words "Wyoming state guard" where necessary.
(b)  No person may be enlisted or reenlisted in such service for more than two (2) years.
(c)  All qualified residents of Wyoming, and any nonresident who is accepted into the service, between seventeen (17) and seventy (70) years of age and of good moral character are eligible for membership in the Wyoming state guard.
(d)  The officers of the Wyoming state guard shall be appointed and commissioned by the governor under such regulations as he may prescribe and may be removed by the governor as provided in W.S. 91202.
(e)  No member of the Wyoming state guard who is an officer or employee of the state of Wyoming, or a county, city, town, school district or other political subdivision thereof shall suffer any loss of pay, vacation privilege, seniority or efficiency rating because of serving in the state guard under orders of the governor.
1910106.  Application of Military Service Relief Act.
The Military Service Relief Act, W.S. 1911101 through 1911124, shall apply to members of the Wyoming state guard.
1910107.  Worker's compensation.
In the event of disability or death resulting from an injury while in state active duty under orders of the governor, members of the Wyoming state guard are entitled to the same benefits provided for employees under the provisions of the Wyoming Worker's Compensation Act. Benefits shall be paid out of the general fund of Wyoming upon certification by the state council of defense.
1910108.  Courtsmartial jurisdiction; exemption from liability for civil or criminal acts; exception.
(a)  Whenever the Wyoming state guard, or any part thereof, is serving under orders of the governor, the provisions of this act relating to military courts and justice shall apply and are in full force and effect with respect to the Wyoming state guard.
(b)  The members of the Wyoming state guard shall be afforded the same immunities from civil liability afforded the Wyoming national guard pursuant to W.S. 199401(c).
1910109.  Disposal of stateowned uniforms and equipment; presentation of uniforms to former members.
The adjutant general of Wyoming may present to former members of the Wyoming state guard as partial compensation for their services, to be retained by the former members as their own personal property without cost or charge, such stateowned items of uniform as designated by the adjutant general.
1910110.  Disposal of stateowned uniforms and equipment; public or private sale.
The adjutant general of Wyoming may sell at public or private sale all stateowned equipment, supplies and items of uniform, or any uniforms not claimed by members of the Wyoming state guard within six (6) months or until all state guard members entitled to the uniforms have received the uniforms, as were acquired for the use and convenience of the Wyoming state guard. The equipment, supplies, and items of uniform not sold or disposed of, shall be retained for the use and convenience of the military department of Wyoming.
1910111.  Disposal of stateowned uniforms and equipment; disposition of proceeds of sale.
All proceeds from the sale or sales of state guard equipment, supplies and items of uniform or money from any source shall be deposited with the state treasurer to be credited to the general fund.
1910112.  Honorary promotion upon retirement.
(a)  Members of the Wyoming state guard may be promoted by the governor or the adjutant general to the next higher grade on the occasion of their retirement from service under the following conditions:
(i)  The member has honorably served either a total of at least twenty (20) years in the federal military or the Wyoming state guard combined, provided that no period less than ten (10) years in the Wyoming state guard shall be credited toward these requirements; and
(ii)  The honorary promotion is requested by the member or the member's commander.
(b)  A promotion under this section is only honorary and has no impact on the retirement pay or other monetary benefits of those promoted under this section.
CHAPTER 11

MILITARY SERVICE MEMBER PROTECTIONS


ARTICLE 1

MILITARY SERVICE RELIEF ACT


1911101.  Title.
As used in this article, "this article" means W.S. 1911101 through 1911124.
1911102.  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.
1911103.  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. 1911101 through 1911124.
1911104.  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.
1911105.  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. 1911104 or 1911111, 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.
1911106.  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.
1911107.  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.
1911108.  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.
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