2. Subdivision 1. does not preclude a person who has chosen not to file a complaint with the adjutant general under par. (a), whose complaint the adjutant general has refused to endeavor to resolve under par. (a), or who has chosen not to request the adjutant general to refer his or her complaint to counsel under subd. 1. from filing a complaint for appropriate relief with the department of workforce development or, if the person is an employee of a state agency, with the personnel commission.
3. The department of workforce development or the personnel commission shall process a complaint filed under subd. 1. or 2. in the same manner that employment discrimination complaints are processed under s. 111.39.
(c) Retaliation prohibited. An employer may not discharge or otherwise discriminate against any person for filing a complaint or attempting to enforce a right provided under this section or for testifying or assisting in any action or proceeding to enforce a right provided under this section.
(d) Remedies. If the department of workforce development or the personnel commission finds that an employer has failed or refused, or is about to fail or refuse, to provide any reemployment right or benefit to which a person is entitled under this section or has discharged or otherwise discriminated against any person in violation of par. (c), the department of workforce development or the personnel commission may order the employer to do any one or more of the following:
1. Take such action as will fully vindicate the rights and benefits of the person under this section.
2. Compensate the person for any loss of wages, salary, or other benefits suffered because of the failure or refusal to provide reemployment rights or benefits under this section or the discharge or other discrimination.
3. Pay the person, as liquidated damages, an amount that is equal to the amount ordered under subd. 2. if the department of workforce development or the personnel commission finds that the failure or refusal to provide reemployment rights or benefits under this section or the discharge or other discrimination was willful.
4. Pay the person costs and reasonable actual attorney fees, if the person is not represented by counsel appointed under par. (b) 1.
(8) Rules. The department of military affairs shall promulgate rules implementing this section.
26,2
Section
2. 106.54 (7) of the statutes is created to read:
106.54 (7) The division shall receive complaints under s. 21.80 (7) (b) 1. or 2. and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.
26,3
Section
3. 111.91 (2) (gm) of the statutes is created to read:
111.91 (2) (gm) Reemployment rights of employees under s. 230.32 (7).
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Section
4. 230.32 (7) of the statutes is created to read:
230.32 (7) Any employee who is absent from state service because the employee is in active service, as defined in s. 21.80 (1) (a), is entitled to all reemployment rights and benefits provided under s. 21.80.
26,5
Section
5. 230.45 (1) (m) of the statutes is created to read:
230.45 (1) (m) Receive complaints under s. 21.80 (7) (b) 1. or 2. and, except as provided in sub. (1m), process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.
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Section
6
.
Nonstatutory provisions.
(1) Emergency rules. Using the procedure under section 227.24 of the statutes, the department of military affairs shall promulgate the rules required under section 21.80 (8) of the statutes, as created by this act, for the period before the effective date of the permanent rules promulgated under section 21.80 (8) of the statutes, as created by this act, but not to exceed the period authorized under section 227.24 (1) (c) and (2) of the statutes. Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the department of military affairs is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.
(2)
Transitional provisions; persons in active service on effective date.
(a) Reemployment. A person who is performing active service, as defined in section 21.80 (1) (a) of the statutes, as created by this act, on the effective date of this paragraph is entitled to the reemployment rights and benefits provided in section 21.80 of the statutes, as created by this act, if, subject to section 21.80 (3) (d) of the statutes, as created by this act, all of the following apply:
1. The person or an appropriate officer in the national guard or the state defense force has given advanced notice of the active service to the person's employer, unless the giving of that notice was precluded by military necessity or was otherwise impossible or unreasonable as described in section 21.80 (3) (b) of the statutes, as created by this act.
2. The cumulative length of all absences from a position of employment with the employer by reason of active service or service in the uniformed services, as defined in
38 USC 4303 (13), whether before or after the effective date of this subdivision, does not exceed 5 years, except as provided in section 21.80 (3) (c) of the statutes, as created by this act.
3. The person reports to the employer as required under section 21.80 (3) (e) 1. of the statutes, as created by this act, or applies for reemployment under section 21.80 (3) (e) 2. or 3. of the statues, as created by this act, whichever is applicable, on or after the effective date of this subdivision.
4. The person's service in the national guard or the state defense force has not been terminated under other than honorable conditions.
(b) Health coverage. A person who is performing active service, as defined in section 21.80 (1) (a) of the statutes, as created by this act, on the effective date of this paragraph or a dependent or personal representative of the person may elect to continue coverage under a health benefit plan, as defined in section 632.745 (11) of the statutes, as provided in section 21.80 (6) (a) of the statutes, as created by this act. If such an election is made, the health benefit plan shall remain in effect for the remaining portion of the 18-month period that began when the person left employment to perform active service or until the day after the date on which the person is required under section 21.80 (3) (e) of the statutes, as created by this act, to report to the employer or apply for reemployment, whichever occurs first.
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Section
7.
Initial applicability.
(1) Continuation of benefits. The treatment of section 21.80 (5) (b) 1. to 4. of the statutes first applies to a person who is performing active service, as defined in section 21.80 (1) (a) of the statutes, as created by this act, on the effective date of this subsection, except that the treatment of section 21.80 (5) (b) 2. of the statutes first applies to a person who leaves a position of employment to perform active service on the effective date of this subsection.
(2) Health coverage. Subject to Section 6 (2) (b
) of this act, the treatment of section 21.80 (6) of the statutes first applies to a person who leaves a position of employment to perform active service on the effective date of this subsection.
