BILL ANALYSIS
AB 485
Page 1
Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
AB 485 (Carter) - As Amended: April 13, 2009
SUBJECT : Civil Air Patrol: employment leave.
SUMMARY : Establishes a right to employment leave and other
employment protections for members of the California Wing of the
Civil Air Patrol, as specified. Specifically, this bill :
1 Provides that an employer with more than 15 employees shall
not discriminate against or discharge a member of the Civil
Air Patrol (CAP) due to the employee's membership in CAP and
shall not hinder or prevent a member from performing service
as part of the California Wing of CAP during an emergency
operational mission.
2)Requires an employer with more than 15 employees to provide
not less than 15 days per calendar year of unpaid leave to an
employee responding to an emergency operational mission of the
California Wing of CAP, as specified.
3)Defines an "employee" as a person who has been employed by the
employer for at least a 90-day period immediately preceding
the commencement of leave.
4)Requires an employee to give the employer as much notice as
possible of the intended date upon which the CAP leave will
begin and end.
5)Authorizes an employer to require certification from the
proper CAP authority to verify employee eligibility for leave,
and provides that the employer may deny the leave to be taken
as CAP leave if the employee fails to provide the required
certification.
6)Specifies that an employee taking leave shall not be required
to exhaust accrued vacation leave, personal leave,
compensatory leave, sick leave, disability leave or other
leave.
7)Provides that nothing in this bill prevents an employer from
providing paid leave to the employee for taking such leave.
AB 485
Page 2
8)Requires an employer to restore an employee to the position
held by him or her when the leave began, or to a position with
equivalent seniority status, employee benefits, pay and other
terms and conditions of employment. However, an employer may
decline to restore an employee because of conditions unrelated
to their exercise of rights under this bill.
9)Prohibits an employer from interfering with, retraining or
denying the exercise of rights under this bill.
10)Prohibits an employer from discharging, fining, suspending,
expelling, disciplining or in any other manner discriminating
against an employee who exercises a right under this bill or
opposes an unlawful practice under this bill.
FISCAL EFFECT : Unknown
COMMENTS : This bill proposes to provide for unpaid leave and
employment protection for members of the Civil Air Patrol, the
civilian auxiliary of the United States Air Force. Unlike most
members of the armed services, members of the Civil Air Patrol
are unpaid volunteers.
Military Leave Provisions Under Federal and State Law
Existing federal law, known as The Uniformed Services Employment
and Reemployment Rights Act (USERRA), prohibits an employer from
denying any benefit of employment on the basis of an
individual's membership, application for membership, performance
of service, application for service, or obligation for service
in the uniformed services. USERRA also requires that employers
rehire a veteran, reservist, or National Guard member after
being absent due to military service or training, assuming the
absence has been less than five years and the employee notified
the employer either verbally or in writing of the upcoming
deployment.
Existing federal and state unpaid employment leave laws require
all employers with 50 or more employees within a 75 mile radius
to grant 12 weeks of unpaid leave in a 12-month period to any
employee who is eligible. This leave can be taken by an
employee for the purposes of child birth, care of a newly
adopted child or newly placed foster child, and the serious
AB 485
Page 3
health condition of the employee, the employee's spouse or
registered domestic partner, the employee's child or for the
employee's parent. With certain exceptions, the employee taking
the leave must be reinstated. At the federal level, these leave
rights are contained in the Family and Medical Leave Act (FMLA).
In California, these protections are provided in the California
Family Rights Act (CFRA).
In 2008, the FMLA was amended to allow eligible employees to
take up to 12 weeks of job-protected leave for any "qualifying
exigency" arising out of the active duty or call to active duty
status of a spouse, son, daughter or parent. The FMLA was also
amended to allow eligible employees to take up to 26 weeks of
job-protected leave to care for a covered servicemember with a
serious injury or illness. These two new types of FMLA leave
are known collectively as the "military family leave
entitlements."
In addition, existing state law requires employers to allow an
employee who is the spouse of a member of the United Sates Armed
Forces, National Guard, or Reserves to take up to 10 days of
unpaid leave while the member of the Armed Forces, National
Guard, or Reserves is home on leave, as specified. Those
provisions were enacted by AB 392 (Lieu), Chapter 361, Statutes
of 2007.
Existing state law also prohibits discrimination against members
of the military or naval forces of the state or of the United
States based on that membership. Additionally, state law
prohibits employers from discharging any person from employment
because of the performance or ordered military duty or training
or by reason of being a member of the military or naval forces
of this state (Military and Veterans Code Sections 394 and 395).
In addition, existing state law provides that a state employee
who is called into service by the Office of Emergency Services
is entitled to administrative time off (up to 10 calendar days
per fiscal year) from his or her appointing power. This
provision of law specifically covers volunteers participating in
the California Wing of the Civil Air Patrol (Government Code
Section 19844.5).
AB 485
Page 4
Background on the Civil Air Patrol
The United States Civil Air Patrol (CAP) was founded in December
1941 by citizens concerned about the defense of America's
coastline during World War II. The CAP became the civilian
auxiliary of the United States Air Force in 1948 and is charged
with three primary missions - aerospace education, cadet
programs and emergency services. The CAP currently has 56,000
members in eight geographic regions consisting of 52 wings.
The California Wing of the CAP is a member of the Pacific Region
and consists of seven groups, approximately 80 squadrons, and
nearly 4,000 individual members.
ARGUMENTS IN SUPPORT :
According to the author, existing state and federal laws
establish leave provisions for members of the Armed Forces of
the United States, their reserve components, and the National
Guard, but not for the CAP. When CAP members are called upon to
serve in an emergency mission, there is no law to ensure that
their jobs will remain after the job is complete. The author
states that, with the current economy, we may lose our brave CAP
members because they cannot afford to lose their jobs.
The author's office contends that similar legislation has been
proposed or enacted in nine other states: Arkansas, Colorado,
Illinois, Indiana, Iowa, Louisiana, Maryland, Minnesota, and
Missouri.
This bill is double referred to the Assembly Judiciary
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Wing of the Civil Air Patrol
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
AB 485
Page 5