Existing law provides protections for members of the National Guard ordered into active state service by the Governor or active federal service by the President of the United States for emergency purposes, and for reservists called to active duty, as specified.

Existing law provides protections for these persons during their period of military service with respect to their private employment rights upon return from service, and requires the district attorney of the county in which an employer maintains a place of business to act as an attorney on behalf of a service member in any action, as specified, against an employer who fails or refuses to comply with those provisions, if the district attorney is reasonably satisfied that the person is entitled to these benefits.

This bill would reorganize these provisions, and would extend these protections to members of the National Guard of other states who are called to military service by their respective Governors or by the President of the United States, and who have left a position in private employment in California. Because this bill would expand the duties of district attorneys, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides protections for members of the National Guard ordered into active state service by the Governor or active federal service by the President of the United States for emergency purposes, and for reservists called to active duty, as specified.

Existing law provides protections for these persons during their period of military service with respect to their private employment rights upon return from service, and requires the district attorney of the county in which an employer maintains a place of business to act as an attorney on behalf of a service member in any action, as specified, against an employer who fails or refuses to comply with those provisions, if the district attorney is reasonably satisfied that the person is entitled to these benefits.

This bill would reorganize these provisions, and would extend these protections to members of the National Guard of other states who are called to military service by their respective Governors or by the President of the United States, and who have left a position in private employment in California. Because this bill would expand the duties of district attorneys, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides protections for members of the National Guard ordered into active state service by the Governor or active federal service by the President of the United States for emergency purposes, and for reservists called to active duty, as specified.

Existing law provides protections for these persons during their period of military service with respect to their private employment rights upon return from service, and requires the district attorney of the county in which an employer maintains a place of business to act as an attorney on behalf of a service member in any action, as specified, against an employer who fails or refuses to comply with those provisions, if the district attorney is reasonably satisfied that the person is entitled to these benefits.

This bill would reorganize these provisions, and would extend these protections to members of the National Guard of other states who are called to military service by their respective Governors or by the President of the United States, and who have left a position in private employment in California. Because this bill would expand the duties of district attorneys, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law authorizes members of the United States Military Reserve or the National Guard who are called to active duty as a result of the Iraq and Afghanistan conflicts, as specified, to defer payments on certain obligations while serving on active duty.

This bill would make technical, nonsubstantive changes to this provision.

 THIRD READING 

Bill No: AB 583

Author: Chávez (R)

Amended: 4/15/15 in Assembly

Vote: 21

SENATE VETERANS AFFAIRS COMMITTEE: 5-0, 6/9/15

AYES: Nielsen, Hueso, Allen, Nguyen, Roth

SENATE APPROPRIATIONS COMMITTEE: 5-0, 6/22/15

AYES: Lara, Beall, Hill, Leyva, Mendoza

NO VOTE RECORDED: Bates, Nielsen

ASSEMBLY FLOOR: 77-0, 5/7/15 (Consent) - See last page for vote

SUBJECT: Military service: employment protections

SOURCE: Author

DIGEST: This bill extends existing employment and reemployment protections to members of national guards of other states, when they must leave positions of private employment within California, due to having been called onto active state service by other states’ Governors or onto active federal service by the President of the United States.

ANALYSIS:

Existing federal law, the Uniformed Services Employment and Re-Employment Rights Act (USERRA), 38 USC 4301:

1. Protects currently serving members and veterans of the United States Armed Forces from employment discrimination on the basis of their service or status.

2. Allows currently serving members of the Armed Forces to regain their civilian jobs following a period of active federal uniformed service. (Applies to members of any military branch’s federal active component, federal reserve component, or federally recognized state national guard.)

Existing state law:

1. Provides specified protections for members of the California National Guard (CNG) ordered into active state service by the Governor or active federal service by the President of the United States for emergency purposes, and for reservists called to active duty.

2. Requires the county district attorney, under specified conditions, to act as an attorney on behalf of a service member in any action against an employer who fails or refuses to comply with those provisions.

This bill:

1. Extends existing employment protections to members of the national guard of any state, when they are called onto active military service by that state’s Governor or by the President of the United States, and who have left a position in private employment in California.

2. Reorganizes and rewrites, for the purpose of enhancing clarity, existing law pertaining to employment and reemployment protections for members of the CNG, who must leave positions of private employment within California, when called to active military service by the Governor of California.

Background

National Guard of the United States. The vast majority of CNG soldiers and airmen are the traditional part-time citizen-soldiers (also known as M-Day soldiers). When necessary, the federal government mobilizes them onto operational active duty tours (including combat), integrating them into the federal military force within their branch of service (Army or Air Force). This mobilization is ordered under the authority of Title 10 of the U.S. Code, which generally governs the full-time active duty armed forces.

When any state’s national guard units are not under federal Title 10 control, the Governor serves the commander-in-chief of the state’s Guard units. As commander-in-chief, the Governor can directly access and utilize the Guard's federally assigned aircraft, vehicles and other equipment so long as the federal government is reimbursed for the use of fungible equipment and supplies such as fuel, food stocks, etc. This is the authority under which the Governor activates and deploys national guard forces in response to natural disasters. It is also the authority under which a Governor deploys national guard forces in response to man-made emergencies such as riots and civil unrest, or terrorist attacks.

A Governor can activate national guard personnel to state active service in response to natural or man-made disasters or Homeland Defense missions. State active service is based on California statute and policy and is funded by state funds. While on state active service, guard members are under the command and control of the Governor, which is exercised through The Adjutant General (TAG).

Another alternative is for guard members to be mobilized onto full-time duty under Title 32, U.S. Code. Typically, this involves an internal state crisis, such as a flood or earthquake, where the Governor proclaims a state emergency and the President then proclaims a federal emergency. Under Title 32, the Soldiers and Airmen are federally funded, but command and control remains with the Governor through the TAG. Title 32 activation can be effected only by the President or Secretary of Defense – and requires the approval and consent of the state Governor.

Because mobilization under Title 32 keeps guard members under state control, the federal Posse Comitatus Act (PCA) is not abridged. Enacted by Congress in 1878, the PCA limits the powers of the federal government in using federal military personnel to enforce state laws. Some Californians are members of the National Guards of neighboring states and are subject to being called to state active duty by the Governors of those states.

Federal Employment Protections. The federal USERRA law protects employees who serve in the U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard. This includes members of the Army or Air National Guard, when they are away from their civilian jobs for federal active service under either Title 10 or Title 32; however, USERRA does not apply when national guard members must leave their civilian jobs when called to state active duty by a Governor. For these situations, protections must be provided by state law.

As is true in many areas of employment law, California provides additional protections beyond those contained in federal law. Members of the CNG who are called to active duty are entitled to unlimited paid leave and reinstatement to their former position or a position of similar seniority, pay, and status, without loss of retirement or other benefits. Employees must apply for reinstatement within 40 days after discharge, and cannot be terminated without cause for one year.

Employees who are in the national guard, reserves, or Naval Militia are entitled to up to 17 days of unpaid leave per year for military training, drills, encampment, naval cruises, special exercises, or similar activities. Employers may not terminate employees or limit their benefits or seniority because an employee has a temporary disability resulting from duty in the CNG or Naval Militia (for up to 52 weeks). And, employers may not discriminate against employees because of their membership in any branch of the state or federal armed services.

State Employment Protections. Military and Veterans (MVC) Code Section 394.5 provides military personnel with the right to take temporary leaves of absence without pay to perform military duties, as is stated below verbatim:

Any employee of any corporation, company, or firm, or other person, who is a member of the reserve corps of the armed forces of the United States or of the CNG or the Naval Militia shall be entitled to a temporary leave of absence without pay while engaged in military duty ordered for purposes of military training, drills, encampment, naval cruises, special exercises, or like activity as such member, providing that the period of ordered duty does not exceed 17 calendar days annually including time involved in going to and returning from such duty.

MVC § 395.06 provides military members with a general right to employment reinstatement, as summarized below:

1. Requires private employers in California, with respect to employees, who are called to active military serve as members of the CNG, to do the following:

1. Consider the employee as having been on a leave of absence during the period of the employee's active military service.

2. Restore the employee to the former position or a position of similar seniority, status, and pay without loss of retirement or other benefits, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so, and

3. Not discharge the employee from his or her position without cause within one year after being restored to the position.

2. Provides that in order to be eligible for these protections, the employee must meet all of the following criteria:

1. Have been called to active duty by the Governor of California or by the President of the United States,

2. Not have been employed in a part time or temporary position,

3. Have received a certificate of satisfactory active service from the CNG,

4. Still be qualified to perform the duties of the private position, and

5. Apply for reemployment within 40 days after release from service.

3. In the case of an employee who held a part-time position, that employee shall be eligible for the same protections if the employee meets all of the following criteria and if the former position, or a position of similar seniority, status, and pay exists. The employee must:

1. Have been called to active duty by the Governor or the President,

2. Have received a certificate of satisfactory active service from the CNG,

3. Still be qualified to perform the duties of the private position, and

4. Apply for reemployment within five days after release from service.

Related/Prior Legislation

AB 1936 (Knight, 2012) would have required that a state employee who is granted a short-term military leave of absence for inactive duty receive his or her state salary for the first 30 calendar days of inactive duty served during a fiscal year. (Held, suspense, Senate Committee on Appropriations)

SB 569 (Morrow, 2002) would have provided that state employees who are on inactive military training duty are eligible for paid leave from the state. (Held, suspense, Assembly Committee on Appropriations)

SB 1950 (Lewis, Chapter 928, Statutes of 2000) revised state provisions to conform to recent changes in federal law to provide that inactive duty military training also qualifies for paid military leave for public employees.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee, potentially minor reimbursable costs to local district attorneys (General Fund).

SUPPORT: (Verified 6/23/15)

American Legion, Department of California

AMVETS, Department of California

California Association of County Veterans Service Officers

California Professional Firefighters

California State Commanders Veterans Council

Military Officers Association of America, California Council of Chapters

U.S. Department of Defense, Office of Military Community and Family Policy

Veterans of Foreign Wars, Department of California

Vietnam Veterans of America, California State Council

OPPOSITION: (Verified 6/23/15)

None received

ASSEMBLY FLOOR: 77-0, 5/7/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NO VOTE RECORDED: Campos, Roger Hernández, Steinorth

Prepared by: Wade Cooper Teasdale / V.A. / (916) 651-1503

6/25/15 8:44:47

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 583 (Chávez) - Military service: employment protections

This bill does not meet the criteria for referral to the Suspense File.

Bill Summary:

AB 583 extends employment protections to employees who are members of other states’ National Guard and who are called to active duty.

Fiscal Impact:

• Potentially minor reimbursable costs to local district attorneys (General Fund)

The District Attorney’s Association indicates little, if any, additional costs as a result of this measure since this currently rarely happens with in-state national guard members. The District Attorney would represent the employee in instances where the employer did not provide employment protections after an employee was sent to active duty with another state’s National Guard and then returned seeking reinstatement to his or her job.

Background:

Under existing law, California employees are provided with employment protections from private employers if they are called to active duty by the Governor or President. Employees are entitled to take up to 17 days of unpaid leave per year for military training, drills or other exercises. Additionally, members who are called to active duty are entitled to limited unpaid leave and reinstatement to their former position or a position of similar seniority, pay, and status without loss of benefits.

Proposed Law:

AB 583 extends employment protections that now apply to officers and enlisted members of the California National Guard, to officers and enlisted members of the National Guard of a state other than California. Specifically, this bill:

1. Provides that whenever an officer or enlisted member of the National Guard of a state other than California leaves a permanent position in private employment because he or she is required to undertake active military duty in the service of the state under certain circumstances, the officer or enlisted member is still qualified to perform the duties of that position in private employment after receiving a certificate of satisfactory service in the National Guard of a state other than California.

2. Requires that when such an officer or enlisted member of the National Guard of a state other than California applies for reinstatement to his or her permanent position in private employment within 40 days after release from service that the employer consider him or her as on leave of absence during that period and the officer or enlisted member to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits.

3. Provides that whenever an officer or enlisted member of the National Guard of a state other than California leaves a temporary position in private employment because he or she is required to undertake active military duty in the service of the state under certain circumstances, the officer or enlisted member is still qualified to perform the duties of that position in private employment after receiving a certificate of satisfactory service in the National Guard of a state other than California.

4. Requires that when such an officer or enlisted member of the National Guard of a state other than California applies for reinstatement to his or her temporary position in private employment within 5 days after release from service that the employer consider him or her as on leave of absence during that period and the officer or enlisted member to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits.

5. Provides an exception to the above rule for reinstatement to a permanent position in private employment, but not a temporary position in private employment, when the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

6. Prohibits the discharge of an officer or enlisted member of the National Guard of a state other than California who has returned from active military duty and been restored to either a permanent or temporary position in private employment without cause for one year after he or she is restored to the position.

7. Allows the officer or enlisted member of the National Guard of a state other than California, if any employer fails or refuses to comply with this section, to file a motion in the superior court of the county in which the employer maintains a place of business, to specifically require the employer to comply with these requirements and compensate the person for any loss of wages or benefits suffered by reason of the employer’s unlawful action.

8. Requires the court to order a speedy hearing and advance it on the calendar.

9. Allows, upon application by the officer or enlisted person to the district attorney of the county or city prosecutor of the city in which the employer maintains a place of business, the district attorney or city prosecutor to appear and act as attorney for the officer or enlisted person in the amicable adjustment of the claim or in the filing of any motion or other appropriate pleading to specifically require the employer to comply with this section, in which case no fees or court costs are required to be paid by the person applying for these benefits.

Staff Comments:

AB 583 provides that officers and enlisted members of the National Guard of states other than California who are employed by private employers in California have the same rights and privileges to be reinstated to their jobs, and to be represented in disputes with their employers by district attorneys and city prosecutors without charge. While federal law protects the rights of reinstatement to employment for members of the U.S. Army or Air National Guard who return from active military service, it does not apply to members of state National Guards (unless those members are called to active duty by the President of the United States). Therefore, states must adopt their own laws to protect members of their state National Guards called to serve by state governors, as California has done for members of its own California National Guard. In addition, California has adopted a number of state-specific benefits for officers and enlisted members of the California National Guard, including the right of service members to be represented in disputes with their employers by district attorneys and city prosecutors without charge, to have calendaring preference, and to be relieved from paying any fees or court costs. This bill would make all of the above protections applicable to officers and enlisted members of the National Guard of states other than California who are employed by private employers in California.

According to the author, the Defense Manpower Data Center (DMDC) collects self-reported data about National Guard members in California who are members of the California National Guard and the National Guard of other states. According to a DMDC report on December 24, 2014, there are 279 National Guard members in California who are assigned to another state’s National Guard.

-- END --

SENATE COMMITTEE ON VETERANS AFFAIRS

Senator Jim Nielsen, Chair

2015 - 2016 Regular

Bill No: AB 583 Hearing Date: 6/9/15

Subject: Military service: employment protections.

DESCRIPTION

Summary:

Existing law provides employment and reemployment protections for members of the California National Guard, when they must leave positions of private employment within California, due to being called onto active state service by the Governor of California or onto active federal service by the President of the United States.

This bill extends those protections to members of National Guards of other states, when they must leave positions of private employment within California, due to having been called onto active state service by other states’ Governors or onto active federal service by the President.

Existing law:

Federal law: The Uniformed Services Employment and Re-Employment Rights Act

(USERRA), 38 USC 4301 et seq.:

1. Protects currently serving members and veterans of the United States Armed Forces from employment discrimination on the basis of their service or status.

2. Allows currently serving members of the Armed Forces to regain their civilian jobs following a period of active federal uniformed service. (Applies to members of any military branch’s federal active component, federal reserve component, or federally recognized state National Guard.)

State law:

1. Provides specified protections for members of the National Guard ordered into active state service by the Governor or active federal service by the President of the United States for emergency purposes, and for reservists called to active duty.

2. Requires the county district attorney, under specified conditions, to act as an attorney on behalf of a service member in any action against an employer who fails or refuses to comply with those provisions.

This bill:

1. Extends existing employment protections to members of the National Guard of any state, when they are called onto active military service by that state’s Governor or by the President of the United States, and who have left a position in private employment in California.

2. For the purpose of enhancing clarity, reorganizes and rewrites existing law pertaining to employment and reemployment protections for members of the California National Guard, who must leave positions of private employment within California, when called to active military service by the Governor of California.

BACKGROUND

National Guard of the United States

The vast majority of California National Guard soldiers and airmen are the traditional part-time citizen-soldiers (also known as M-Day soldiers). Typically, these individuals work at full-time civilian careers although some are college students. They drill with their Guard units at least one weekend per month and perform a minimum of two weeks (but sometimes longer) on active duty status in annual training.

When necessary, the federal government mobilizes them onto operational active duty tours (including combat), integrating them into the federal military force within their branch of service (Army or Air Force). This mobilization is ordered under the authority of Title 10 of the U.S. Code, which generally governs the full-time active duty armed forces.

When any state’s National Guard units are not under federal Title 10 control, the Governor serves the commander-in-chief of the state’s Guard units. As commander-in-chief, the Governor can directly access and utilize the Guard's federally assigned aircraft, vehicles and other equipment so long as the federal government is reimbursed for the use of fungible equipment and supplies such as fuel, food stocks, etc. This is the authority under which the Governor activates and deploys National Guard forces in response to natural disasters. It is also the authority under which the Governor deploys National Guard forces in response to man-made emergencies such as riots and civil unrest, or terrorist attacks.

The Governor can activate Guard personnel to state active service in response to natural or man-made disasters or Homeland Defense missions. State active service is based on California statute and policy and is funded by state funds. While on state active service, Guard members are under the command and control of the Governor, which is exercised through The Adjutant General (TAG).

Another alternative is for Guard members to be mobilized onto full-time duty under Title 32, U.S. Code. Typically, this involves an internal state crisis, such as a flood or earthquake, where the Governor proclaims a state emergency and the President then proclaims a federal emergency. Under Title 32, the Soldiers and Airmen are federally funded, but command and control remains with the Governor through the TAG. Title 32 activation can be effected only by the President or Secretary of Defense – and requires the approval and consent of the state Governor.

Because mobilization under Title 32 keeps Guard members under state control, the federal Posse Comitatus Act (PCA) is not abridged. Enacted by Congress in 1878, the PCA limits the powers of the federal government in using federal military personnel to enforce state laws. Some Californians are members of the National Guards of neighboring states and are subject to being called to state active duty by the Governors of those states.

Note: Generally, the Governor will employ the state’s National Guard assets for emergencies within the state. If there are insufficient soldiers or equipment, agreements such as the Emergency Management Assistance Compact allow the state to lend and borrow soldiers and equipment from other states. If personnel or re-equipment insufficiencies persist, the Governor can request federal assets. Federal or state military support of state or local civilian government is termed Defense Support to Civil Authorities (DSCA).

Federal Employment Protections

The federal USERRA law protects employees who serve in the U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard. This includes members of the Army or Air National Guard, when they are away from their civilian jobs for federal active service under either Title 10 or Title 32; however, USERRA does not apply when National Guard members must leave their civilian jobs when called to state active duty by a Governor. For these situations, protections must be provided by state law.

As is true in many areas of employment law, California provides additional protections. Members of the California National Guard who are called to active duty are entitled to unlimited paid leave and reinstatement to their former position or a position of similar seniority, pay, and status, without loss of retirement or other benefits. Employees must apply for reinstatement within 40 days after they are discharged, and cannot be terminated without cause for one year.

Employees who are in the Guard, Reserves, or Naval Militia are entitled to up to 17 days of unpaid leave per year for military training, drills, encampment, naval cruises, special exercises, or similar activities. Employers may not terminate employees or limit their benefits or seniority because an employee has a temporary disability resulting from duty in the National Guard or Naval Militia (for up to 52 weeks). And, employers may not discriminate against employees because of their membership in any branch of the state or federal armed services.

State Employment Protections

Military and Veterans (MVC) Code Section 394.5 provides military personnel with the right to take temporary leaves of absence without pay to perform military duties, as is stated below verbatim:

Any employee of any corporation, company, or firm, or other person, who is a member of the reserve corps of the armed forces of the United States or of the National Guard or the Naval Militia shall be entitled to a temporary leave of absence without pay while engaged in military duty ordered for purposes of military training, drills, encampment, naval cruises, special exercises, or like activity as such member, providing that the period of ordered duty does not exceed 17 calendar days annually including time involved in going to and returning from such duty.

MVC § 395.06 provides military members with a general right to employment reinstatement, as summarized below:

1. Requires private employers in California, with respect to employees, who are called to active military serve as members of the California National Guard, to do the following:

1. Consider the employee as having been on a leave of absence during the period of the employee's active military service.

2. Restore the employee to the former position or a position of similar seniority, status, and pay without loss of retirement or other benefits, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so, and

3. Not discharge the employee from his or her position without cause within one year after being restored to the position.

2. Provides that in order to be eligible for these protections, the employee must meet all of the following criteria:

1. Have been called to active duty by the Governor of California or by the President of the United States,

2. Not have been employed in a part time or temporary position,

3. Have received a certificate of satisfactory active service from the National Guard,

4. Still be qualified to perform the duties of the private position, and

5. Make application for reemployment within 40 days after release from service.

3. In the case of an employee who held a part-time position, that employee shall be eligible for the same protections if the employee meets all of the following criteria and if the former position, or a position of similar seniority, status, and pay exists. The employee must:

1. Have been called to active duty by the Governor or by the President of the United States

2. Have received a certificate of satisfactory active service from the National Guard,

3. Still be qualified to perform the duties of the private position, and

4. Make application for reemployment within five days after release from service.

COMMENT

Author Statement

“We should ensure women and men coming home from deployment can return to their civilian jobs, National Guard members already give up months of time with their families to serve our Country and our State. Let’s not ask them to also sacrifice their job after they have answered the call to service.”

Related Legislation

AB 1936 (Knight, 2012) would have required that a state employee who is granted a short-term military leave of absence for inactive duty receive his or her state salary for the first 30 calendar days of inactive duty served during a fiscal year. (Held, Senate Appropriations Committee)

SB 569 (Morrow, 2002) would have provided that state employees who are on inactive military training duty are eligible for paid leave from the state. (Held, Assembly Appropriations Committee)

SB 1950 (Lewis, Chapter 928, Statutes of 2000) revises state provisions to conform to recent changes in federal law to provide that inactive duty military training also qualifies for paid military leave for public employees.

POSITIONS

Sponsor: Author

Support:

American Legion, Department of California

AMVETS, Department of California

California Association of County Veterans Service Officers

California State Commanders Veterans Council

Military Officers Association of America, California Council of Chapters

U.S. Department of Defense, Office of Military Community and Family Policy

Veterans of Foreign Wars, Department of California

Vietnam Veterans of America, California State Council

Oppose: None received

-- END --

Date of Hearing: April 29, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 583

Author:(Chávez) – As Amended Ver:April 15, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill extends employment protections to members of the National Guard of any state who are called to military service by their respective Governors or by the President of the United States, and who have left a position in private employment in California.

FISCAL EFFECT:

Potential minor reimbursable state mandated costs to a city prosecutor to represent military personnel if an employer fails to comply with the employment protections provided in this bill.

COMMENTS:

1. Purpose. According to the author, "Current state law protects the employment of California National Guard members on state active duty. This law only applies to members of the California National Guard. Current state law does not protect members of other-state National Guard units who work in California and who are called to state active duty by their home-state Governors."

"The Uniformed Services Employment and Reemployment Rights Act (USERRA) does not apply when a National Guard member is called up by their Governor to serve state active duty to respond to state emergencies such as fires, hurricanes, tornadoes, floods, etc."

"Unless state law covers the person who works in that state but is assigned to another state’s National Guard, they have no reemployment rights after completing state active duty. AB 583 will provide employment protection to members of the National Guard who work in California and are called up by their Governor in another state."

This bill will only impact non-permanent residents who are employed in California, but are members of the National Guard of another state and are called to duty.

2. Background. Current law provides that whenever an officer or enlisted member of the California National Guard leaves a permanent position, or temporary position, in private employment because he or she is required to undertake active military duty in the service of the state under certain circumstances, the officer or enlisted member is still qualified to perform the duties of that position in private employment after receiving a certificate of satisfactory service in the California National Guard. Current law also provides that when such an officer or enlisted member of the California National Guard applies for reinstatement to his or her permanent position in private employment within 40 days after release from service, (or 5 days for a temporary position, unless specific conditions apply), that the employer consider him or her as on leave of absence during that period and return the officer or enlisted member to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits.

The USERRA is a federal law that establishes certain rights and benefits for employees, and duties for employers. USERRA affects employment, reemployment, and retention in employment, when employees serve or have served in the uniformed services.

According to the Department of Defense, “USERRA is a federal law intended to ensure that persons who serve or have served in the [United States] Armed Forces, Reserves, National Guard or other uniformed services: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service.”  Therefore, USERRA does not apply to members of state National Guards, unless those troops are called to service by the President of the United States.

Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081

Date of Hearing: April 21, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 583

Author:(Chávez) – As Amended Ver:April 15, 2015

PROPOSED CONSENT

SUBJECT: MILITARY SERVICE: EMPLOYMENT PROTECTIONS

KEY ISSUE: SHOULD THE EMPLOYMENT AND REEMPLOYMENT PROTECTIONS FOR OFFICERS AND ENLISTED MEMBERS OF THE CALIFORNIA NATIONAL GUARD WHO WORK FOR PRIVATE EMPLOYERS IN CALIFORNIA, REQUIRING EMPLOYERS TO REINSTATE MEMBERS OF THE CALIFORNIA NATIONAL GUARD TO THEIR FORMER POSITIONS AFTER THEY RETURN FROM ACTIVE MILITARY DUTY AND PROHIBITING DISCHARGE WITHOUT CAUSE FOR ONE YEAR AFTER RETURN FROM DEPLOYMENT, BE EXTENDED TO OFFICERS AND ENLISTED MEMBERS OF THE NATIONAL GUARD OF A STATE OTHER THAN CALIFORNIA?

SYNOPSIS

This non-controversial bill provides that officers and enlisted members of the National Guard of states other than California who are employed by private employers in California have the same rights and privileges to be reinstated to their jobs, represented in disputes with their employers by district attorneys and city prosecutors without charge, and have calendaring preference and relief from all fees or court costs that California National Guard members have under current law. While federal law protects the rights of reinstatement to employment for members of the U.S. Army or Air National Guard who return from active military service, it does not apply to members of state National Guards (unless those members are called to active duty by the President of the United States). Therefore, states must adopt their own laws to protect members of their state National Guards called to serve by state governors, as California has done for members of its own California National Guard. In addition, California has adopted a number of state-specific benefits for officers and enlisted members of the California National Guard, including the right of service members to be represented in disputes with their employers by district attorneys and city prosecutors without charge, to have calendaring preference, and to be relieved from paying any fees or court costs. This non-controversial bill would make all of the above protections applicable to officers and enlisted members of the National Guard of states other than California who are employed by private employers in California. There is no recorded opposition to this bill.

SUMMARY: Extends employment protections that now apply to officers and enlisted members of the California National Guard to officers and enlisted members of the National Guard of a state other than California. Specifically, this bill:

1. Provides that whenever an officer or enlisted member of the National Guard of a state other than California leaves a permanent position in private employment because he or she is required to undertake active military duty in the service of the state under certain circumstances, the officer or enlisted member is still qualified to perform the duties of that position in private employment after receiving a certificate of satisfactory service in the National Guard of a state other than California.

2. Requires that when such an officer or enlisted member of the National Guard of a state other than California applies for reinstatement to his or her permanent position in private employment within 40 days after release from service that the employer consider him or her as on leave of absence during that period and the officer or enlisted member to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits.

3. Provides that whenever an officer or enlisted member of the National Guard of a state other than California leaves a temporary position in private employment because he or she is required to undertake active military duty in the service of the state under certain circumstances, the officer or enlisted member is still qualified to perform the duties of that position in private employment after receiving a certificate of satisfactory service in the National Guard of a state other than California.

4. Requires that when such an officer or enlisted member of the National Guard of a state other than California applies for reinstatement to his or her temporary position in private employment within 5 days after release from service that the employer consider him or her as on leave of absence during that period and the officer or enlisted member to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits.

5. Provides an exception to the above rule for reinstatement to a permanent position in private employment, but not a temporary position in private employment, when the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

6. Prohibits the discharge of an officer or enlisted member of the National Guard of a state other than California who has returned from active military duty and been restored to either a permanent or temporary position in private employment without cause for one year after he or she is restored to the position.

7. Allows the officer or enlisted member of the National Guard of a state other than California, if any employer fails or refuses to comply with this section, to file a motion in the superior court of the county in which the employer maintains a place of business, to specifically require the employer to comply with these requirements and compensate the person for any loss of wages or benefits suffered by reason of the employer’s unlawful action.

8. Requires the court to order a speedy hearing and advance it on the calendar.

9. Allows, upon application by the officer or enlisted person to the district attorney of the county or city prosecutor of the city in which the employer maintains a place of business, the district attorney or city prosecutor to appear and act as attorney for the officer or enlisted person in the amicable adjustment of the claim or in the filing of any motion or other appropriate pleading to specifically require the employer to comply with this section, in which case no fees or court costs are required to be paid by the person applying for these benefits.

EXISTING LAW:

1. Provides that whenever an officer or enlisted member of the California National Guard leaves a permanent position in private employment because he or she is required to undertake active military duty in the service of the state under certain circumstances, the officer or enlisted member is still qualified to perform the duties of that position in private employment after receiving a certificate of satisfactory service in the California National Guard. (Military and Veterans Code Section 395.06 (a). All further statutory references are to this code, unless otherwise indicated.)

2. Requires that when such an officer or enlisted member of the California National Guard applies for reinstatement to his or her permanent position in private employment within 40 days after release from service that the employer consider him or her as on leave of absence during that period and the officer or enlisted member to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits. (Section 395.06 (a).)

3. Provides that whenever an officer or enlisted member of the California National Guard leaves a temporary position in private employment because he or she is required to undertake active military duty in the service of the state under certain circumstances, the officer or enlisted member is still qualified to perform the duties of that position in private employment after receiving a certificate of satisfactory service in the California National Guard. (Section 395.06 (b).)

4. Requires that when such an officer or enlisted member of the California National Guard applies for reinstatement to his or her temporary position in private employment within 5 days after release from service that the employer consider him or her as on leave of absence during that period and the officer or enlisted member to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits. (Section 395.06 (b).)

5. Provides an exception to the above rule for reinstatement to a permanent position in private employment, but not a temporary position in private employment, when the employer’s circumstances have so changed as to make it impossible or unreasonable to do so. (Sections 395.06 (a), (b).)

6. Prohibits the discharge of an officer or enlisted member of the California National Guard who has returned from active military duty and been restored to either a permanent or temporary position in private employment without cause for one year after he or she is restored to the position. (Section 395.06 (a), (b).)

7. Allows the officer or enlisted member, if any employer fails or refuses to comply with this section, to file a motion in the superior court of the county in which the employer maintains a place of business, to specifically require the employer to comply with these requirements and compensate the person for any loss of wages or benefits suffered by reason of the employer’s unlawful action. (Section 395.06 (c).)

8. Requires the court to order a speedy hearing and advance it on the calendar. (Ibid.)

9. Allows, upon application by the officer or enlisted person to the district attorney of the county or city prosecutor of the city in which the employer maintains a place of business, the district attorney or city prosecutor to appear and act as attorney for the officer or enlisted person in the amicable adjustment of the claim or in the filing of any motion or other appropriate pleading to specifically require the employer to comply with this section, in which case no fees or court costs are required to be paid by the person applying for these benefits. (Ibid.)

10. Pursuant to the federal Uniformed Services Employment and Re-Employment Rights Act, extends reemployment rights to persons who have been absent from a position of employment because of “service in the uniformed services,” guaranteeing a veteran who is returning from military service or training the right to be reemployed at his or her former position of employment with the same benefits, subject to conditions. (38 U.S.C. Sections 4312, 4313, 4316.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: According to the U.S. Department of Labor, Gulf War II veterans—those who have served since September 2001—amount to nearly 10 percent of the veteran population in the United States and have a higher unemployment rate than veterans from all other service periods. (http://www.bls.gov/spotlight/2010/veterans) Veterans serve the United States around the world during war and peace, but often return home to find themselves unemployed. Private employers who hire veterans provide valuable assistance to veterans and have special responsibilities (and benefits) for hiring them. For example, private employers must provide job-protected leave for up to 17 days a year for “military training, drills, encampment, naval cruises, special exercises or like activity.” (Section 394.5.) At the same time, a number of tax credits, such as the Work Opportunity Tax Credit (which as of the date of this analysis has not yet been reauthorized by Congress), provide tax credits of up to $5,600 for employers who hire veterans.

The National Guard is a hybrid state-federal entity. The Army National Guard is a direct descendent of the militias of the 13 English colonies and the oldest component of the U.S. military, having units that date back to 1636. U.S. Army and Air National Guard troops have fought in every American war, from 1636 to present combat in Afghanistan. (http://www.nationalguard.mil/Portals/31/Features/Resources/Fact%20Sheets/new/General%20Information/arng_guard.pdf.) Meanwhile, state National Guard forces are organized into units stationed in each of the 50 states and U.S. territories, and operate under their respective state or territorial governor. The governors exercise control through the state adjutants general. The state National Guard may be called up for active duty by the governors to help respond to domestic emergencies and disasters, such as hurricanes, floods, and earthquakes.

The Uniformed Services Employment and Reemployment Rights Act of 1994. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that establishes certain rights and benefits for employees, and duties for employers. USERRA affects employment, reemployment, and retention in employment, when employees serve or have served in the uniformed services. USERRA's reemployment provisions apply to members of the uniformed services seeking civilian reemployment on or after December 12, 1994. USERRA's anti-discrimination and anti-retaliation provisions became effective on October 13, 1994. The elements of USERRA are codified in California law and act as further employment protection for service members serving in the United States uniformed services. However, according to the Department of Defense, “USERRA is a federal law intended to ensure that persons who serve or have served in the [United States] Armed Forces, Reserves, National Guard or other uniformed services: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service.”  (http://www.esgr.mil/USERRA/What-is-USERRA.aspx)  Therefore, USERRA does not apply to members of state National Guards, unless those troops are called to service by the President of the United States.

The small number of service members affected by this bill are likely not permanent residents of California. By its terms, this bill only applies to an officer or enlisted member of the National Guard of a state other than California who is employed by a private employer in California. Why would such a service member ever be in the state of California and employed by a private employer? Under the scenario envisioned by the bill, the officer or enlisted member likely joined the National Guard of the other state and then later moved to California because of employment or another personal reason. If that officer or enlisted member is called to active duty by the governor of that other state, the officer or enlisted member would be required to deploy, but would not necessarily be entitled to all of the employment protections as an officer or enlisted member of the California National Guard who returned to his or her job after deployment.

While members of the U.S. Army and Air National Guard have employment and reemployment protections because of USERRA, members of state National Guards are not protected by USERRA. Therefore, California codified similar protections in Section 395.06 to give similar protections to members of its California National Guard who are employed by private employers. In addition, California law provides several additional benefits to service members of the California National Guard which are not available under current law to members of the National Guard of other states. For example, current California law allows district attorneys and city prosecutors to act on behalf of officers and enlisted members of the California National Guard who are seeking redress from employers not complying with the employment and reemployment provisions. It also requires the court to order a speedy hearing and advance it on the calendar and prohibits any fees or court costs from being charged to the service member. (Section 395.06 (c).) This bill would make all of the employment protections, including the special state-specific benefits, available to members of the National Guard of another state who are employed in California. By extending these protections to members of the National Guard of other states who are employed in California, the author concludes, this bill will serve as another step in helping those in the uniformed services by protecting their rights under state law to employment and reemployment.

According to the author:

Current state law protects the employment of California National Guard members on state active duty. This law only applies to members of the California National Guard. Current state law does not protect members of other-state National Guard units who work in California and who are called to state active duty by their home-state Governors.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) does not apply when a National Guard member is called‐up by their Governor to serve state active duty to respond to state emergencies such as fires, hurricanes, tornadoes, floods, etc.

Unless state law covers the person who works in that state but is assigned to another state’s National Guard, they have no reemployment rights after completing state active duty. Nationally, 13 states offer similar provisions to protect National Guard Members and 11 have introduced legislation this year. AB 583 will provide employment protection to members of the National Guard who work in California and are called up by their Governor in another state.

How many members of other-state National Guard units are currently in California? It is difficult to say. According to the author, the Defense Manpower Data Center (DMDC) collects self-reported data about National Guard members in California who are members of the California National Guard and the National Guard of other states. According to a DMDC report on December 24, 2014, there are 279 National Guard members in the state who are assigned to another state’s National Guard. Meanwhile, the California National Guard has 258 members who are assigned to work out of state. While the National Guard members from other states will be protected by the provisions of this bill, the California National Guard members working out of state will only have the protections of this bill if the states where they are working pass similar laws. According to the author, “To date, about 13 states have passed legislation protecting [National Guard] from other states working in their state from losing their jobs if they are called up by the state. While these numbers are small, it is a simple fix and the right thing to do.”

Double Referral. This bill recently passed the Assembly Veterans Affairs Committee by a vote of 9-0 on April 14, 2015.

REGISTERED SUPPORT / OPPOSITION:

Support

American Legion

AMVETS

County Association of County Veterans Service Officers

California State Commanders Veterans Council

Military Officers Association of America, California Council of Chapters (CAL-MOAA)

U.S. Department of Defense, Office of the Deputy Assistant Secretary of Defense (Military Community and Family Policy)

VFW, Department of California

Vietnam Veterans of America, California State Council

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

Date of Hearing: April 14, 2015

ASSEMBLY COMMITTEE ON VETERANS AFFAIRS

Jacqui Irwin, Chair

ABPCA Bill Id:AB 583

Author:(Chávez) – As Amended Ver:March 26, 2015

SUBJECT: Military service: employment protections

SUMMARY: Extends employment protections to members of the National Guard of any state who are called to military service by their respective Governors or by the President of the United States, and who have left a position in private employment in California. Specifically, this bill:

1. Requires private employers in California, with respect to members of the National Guard of any state called to active service to do the following:

   1. Consider the employee as having been on a leave of absence during the period of the employee's active service,

   2. Restore the former employee to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so, and

   3. Not discharge the employee from his or her position without cause within one year after being restored to the position.

2. Clarifies that in order to be eligible for these protections, the employee must meet all of the following criteria:

   1. Have been called to active duty by the Governor of the state where the employee serves in the National Guard or by the President of the United States,

   2. Not have been employed in a part time or temporary position,

   3. Have received a certificate of satisfactory service in the National Guard of the state where the employee serves in the National Guard,

   4. Still be qualified to perform the duties of the position, and

   5. Make application for reemployment within 40 days after release from service.

3. In the case of an employee who held a part-time position, that employee shall be eligible for the same protections if the employee meets all of the following criteria and if the former position, or a position of similar seniority, status, and pay exists. The employee must:

   1. Have been called to active duty by the Governor of the state where the employee serves in the National Guard or by the President of the United States,

   2. Have received a certificate of satisfactory service in the National Guard of the state where the employee serves in the National Guard,

   3. Still be qualified to perform the duties of the position, and

   4. Make application for reemployment within five days after release from service.

EXISTING LAW:

Section 395.06 of the Military and Veterans Code gives the same protections as contemplated in the bill to California National Guard members who work in California.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) 38 United States Code Chapter 4301-4335, protects the employment of servicemembers while they are performing federal military service.

Various sections of the United States Code govern the National Guard and permit the National Guard to be used in different modes or statuses. According to the National Guard Association of the United States' "NGAUS Fact Sheet, Understanding the Guard's Duty Statuses" the relevant statuses may be briefly explained as follows:

Title 32 Full-Time National Guard Duty

“Full-time National Guard Duty” means training or other duty, other than inactive duty, performed by a member of the National Guard. Title 32 allows the Governor, with the approval of the President or the Secretary of Defense, to order a member to duty for operational Homeland Defense activities.

Title 10 Active-Duty

“Active duty” means full-time duty in the active military service of the U.S. Title 10. It allows the President to “federalize” the National Guard forces by ordering them to active duty in their militia status.

FISCAL EFFECT: Unknown at this time.

COMMENTS: National Guard members are not covered by USERRA when in Title 32 status. In California similar existing law covers California employees who are members of the California National Guard.

Although it is not the norm, there are California employees who, for various reasons, are members of the National Guard of other states. Current California law does not give them job protections when they are called to serve in the Guard of another state in Title 32 status. This bill extends the same protections to all Guard members who work in California without regard for what state the Guard members serve in.

Exact figures were not available at the time of this writing, but the number of Guard members protected by this bill is likely to be modest, according to staff discussions with Military Department and Department of Defense staff. Nevertheless, these men and women have committed to serving the Nation and to serve a state whenever either should call. Protecting their employment while they do so recognizes their sacrifices and service. Finally, we have an all-volunteer force; the prospect of losing one's job if called to active duty would make volunteering for service far less attractive.

Suggested Amendments:

Staff and the author have discussed amendments to make the sections of code affected by this bill more readable and to give them more structure. These amendments would neither change what the bill does nor alter the policy analysis in any way but simply would make the law more readable and accessible. If the language is ready in time, these clarifying amendments may be discussed and proposed in Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

American Legion- Department of California

AMVETS, Department of California

California Association of County Veterans Service Officers

California State Commanders Veterans Council

Department of Defense State Liaison Office

Military Officers Association- California Council of Chapters

Veterans of Foreign Wars- Department of California

Vietnam Veterans of America- California State Council

Opposition

None on File.

Analysis Prepared by: John Spangler / V.A. / (916) 319-3550