BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 485
Assemblymember Carter
As Amended April 13, 2009
Hearing Date: July 7, 2009
Labor Code
GMO:jd
SUBJECT
Civil Air Patrol Employment Protection Act
DESCRIPTION
This bill would establish employment protections for volunteer
members of the Civil Air Patrol, when performing authorized
emergency operational missions within the state of California.
Specifically, this bill would require employers with more than
15 employees to provide at least 10 days per calendar year of
unpaid Civil Air Patrol leave to members of the California Wing
of the Civil Air Patrol so they may perform authorized emergency
operational missions, and to restore the members to their
positions or equivalent positions held before the leave was
exercised. The bill would provide other protections such as a
prohibition on the employer requiring exhaustion of sick or
vacation leave, or any other leave, prior to eligibility for
this leave from the employer.
(This analysis reflects amendments taken in the Committee on
Labor and Industrial Relations hearing on June 25, 2009. Those
amendments will be added to any other amendments made to the
bill in this committee.)
BACKGROUND
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
(more)
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programs, and emergency services. The CAP currently has 57,000
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.
In terms of emergency services, the California Wing of the Civil
Air Patrol conducts search and rescue missions, disaster relief,
and humanitarian services in conjunction with the Red Cross,
including blood and tissue transportation. The Civil Air Patrol
reports that so far this year they have participated in two
emergency missions. As most emergency missions involve
stressful flight conditions, most volunteers spend a few days on
the mission before they are replaced by other Civil Air Patrol
volunteers and sent home.
CHANGES TO EXISTING LAW
Existing federal law , 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. (38 U.S.C. Secs. 4301 - 4335.)
Existing federal and state laws on unpaid employment leave
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
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. (Family and Medical Leave Act
(FMLA), 29 U.S.C. Sec. 2601 et seq.; 29 CFR Part 825;
California Family Rights Act (CFRA) Gov. Code Sec. 12945.2.)
Existing federal law , via amendments made to the FMLA in 2008,
allows eligible employees to take up to 12 weeks of
job-protected leave for any "qualifying exigency" arising out of
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the active duty or call to active duty status of a spouse, son,
daughter, or parent and to allow eligible employees to take up
to 26 weeks of job-protected leave to care for a covered service
member with a serious injury or illness. These two new types of
FMLA leave are known collectively as the "military family leave
entitlements."
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. (Mil. and Vet. Code
Sec. 395.10.)
Existing state law prohibits employers from discrimination
against members of the military or naval forces of the state or
of the United States based on that membership and prohibits
employers from discharging any person from employment because of
the performance of ordered military duty or training or by
reason of being a member of the military or naval forces of this
state (Mil. and Vet. Code Secs. 394, 395).
Existing state law provides a state employee who also serves in
the Civil Air Patrol (or other named volunteer program) as a
volunteer with administrative leave of up to 10 calendar days
per fiscal year to engage in a search and rescue operation,
disaster mission, or other life-saving mission conducted within
the state, at the discretion of the employee's appointing
authority. A leave request may not be unreasonably withheld, a
single mission may not exceed three days, unless granted by the
appointing power, and the employee remains entitled to any
normal benefits and salary currently provided by his or her
office during the leave. (Gov. Code Sec. 19844.5.)
This bill would establish the right to unpaid employment leave
and other job protections for a volunteer member of the U.S.
Civil Air Patrol (CAP) when the member responds to an authorized
emergency operational mission as part of the California Wing of
the CAP. Specifically, this bill would:
(1) require an employer with more than 15 employees to provide
not less than 10 days per calendar year of unpaid leave to an
employee who is a volunteer and is responding to an emergency
operational mission of the California Wing of CAP;
(2) limit this CAP leave for a single emergency operational
mission to no more than three days, unless an extension is
granted;
(3) prohibit an employer from granting this leave to an
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employee who is required to respond as a first responder for a
local, state, or federal agency;
(4) authorize the employer to require certification from the
appropriate CAP as verification of the employee's eligibility
for leave, and to deny the leave if the employee fails to
provide the certification;
(5) specify that an employee taking leave shall not be required
to exhaust accrued vacation leave, personal leave,
compensatory leave, sick leave, disability leave, or any other
leave during this CAP leave;
(6) require the employer to restore an employee to the position
he or she held when the leave began, or to a position with
equivalent seniority status, employee benefits, pay, and other
terms and conditions of employment, but allow the employer to
decline to restore an employee because of conditions unrelated
to their exercise of rights under this bill;
(7) prohibit 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, and prohibit an
employer from interfering with, retraining, or denying the
exercise of rights under this bill;
(8) provide that the leave available under this bill would be
unpaid, but nothing in the bill would prevent an employer from
providing paid leave for this purpose;
(9) provide that an employer and employee may negotiate for
the employer to maintain the benefits of the employee at the
expense of the employer during the leave;
(10)provide other protections for benefits accrued prior to the
date on which leave begins, rights under any collective
bargaining agreement or employee benefit plan entered into on
or after January 1, 2010, contract rights or seniority status
of an employee not entitled to this leave, and related
employment rights; and
(11)authorize an employee to bring a civil action in the
appropriate superior court to enforce the provisions of this
bill, including issuance of an injunction and other necessary
and appropriate relief.
COMMENT
1. Need for the bill
The author states:
[T]he Civil Air Patrol is the civilian auxiliary of the United
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States Air Force. State and federal law establish leave
provisions for members of the Armed Forces of the United
States, their reserve components, and the National Guard.
The Civil Air Patrol, the official auxiliary of the U.S. Air
Force, is an all-volunteer organization with 57,000 members
nationwide. CAP performs more than 90% of search and rescue
missions for general aviation aircraft in the nation. It also
provides support during emergency situations such as
earthquakes, fires, flood, and missing persons. More than
3,000 volunteers make up the California Wing of the Civil Air
Patrol.
Members of the California Wing of the Civil Air Patrol do not
receive salaries or stipends for their service to the state
and nation. When these members are called upon to serve in an
emergency mission, there is no law to ensure that their jobs
will remain after the mission is complete.
With the current economy, we may lose our brave Civil Air
Patrol members because they cannot afford to lose their day
jobs.
2. Amendments taken in Labor and Industrial Relations
Committee
This analysis reflects the following amendments taken in Labor
and Industrial Relations Committee on June 25, 2009.
(a) The total unpaid leave that would be provided under the
bill is reduced from 15 calendar days to 10 calendar days.
(b) A single emergency operational mission for which a CAP
leave would be available is limited to three days.
(c) No CAP leave would be available to a CAP who is a first
responder for a local, state or federal agency.
(d) A civil action authorized under this bill shall be filed
in the appropriate county superior court, not a court of
appeal.
3. Unpaid leave of at least 10 days per calendar year for all
employees who are volunteer CAPs
This bill would require employers with 15 or more employees to
provide not less than 10 days of unpaid Civil Air Patrol leave
to an employee who performs service as part of the California
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Wing of the CAP during an emergency operational mission of the
California Wing of the Civil Air Patrol.
a. Bill would apply to all employers, including state and
local agencies, that have 15 or more employees
Under current law, a state employee may have up to 10 calendar
days per fiscal year of paid leave for volunteer work with the
California Wing of the Civil Air Patrol, when responding to an
emergency situation in the state. During this period, the
employee's pay and benefits continue to be paid, but the
employee may not be paid overtime, will not be covered with
death or disability payments in the event the employee is
injured or killed in the course of this service, and may be
released into the mission only at the discretion of the
employee's appointing authority.
There is no state law that covers any other employee for
service as a volunteer for the California Wing of the CAP on
an authorized operational mission in the state or anywhere
else.
This bill would cover all employers, private and public, that
have 15 or more employees. Thus, a state employee could have
the 10 days of paid leave during a fiscal year plus at least
10 more days during a calendar year of unpaid leave under this
bill. Also, a state employee who is a member of the Civil Air
Patrol, but not the California Wing, could be entitled to not
less than 10 days of unpaid leave, but not the 10 days of paid
leave (since that entitlement is limited to members of the
California Wing only), for service to the California Wing CAP
during an emergency operational mission of the CAP, if the
employee is certified for the leave by the California Wing of
the CAP.
Other public agencies, such as counties and cities with 15 or
more employees, and private employers would be required to
provide the minimum of 10 days' unpaid leave under this bill,
as well as the other protections provided these
employee-volunteers under AB 485. (Other protections,
applicable to all eligible employees, are discussed in Comment
2e, 2f, and 2g.)
b. Leave may be taken for three days per mission unless
extended; no leave for first responders
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The leave provided under AB 485 would be limited to three days
for a single emergency operational mission, unless an
extension is granted by the governmental entity that
authorized the mission and the extension of leave is approved
by the employer. Thus, even if the extension of a mission is
requested and granted by the U.S. Air Force through the U.S.
Civil Air Patrol, for example, but the employer does not, a
volunteer must return to work.
The bill would prohibit an employer from granting CAP leave to
an employee who is required to respond to the emergency
operational mission as a first responder for a local, state or
federal agency. Thus, firefighters for example, cannot take
this type of leave because they are first responders for the
district that employs them.
c. Other states provide similar benefits, some paid but most
are unpaid
Nine other states have similar statutes to AB 485. Colorado,
for example, provides public employees (state and municipal)
for up to 15 work days of leave per calendar year without loss
of pay, seniority, status, efficiency rating, vacation, sick
leave, or other benefits. Colorado private employees may get
up to 15 work days of leave per calendar year, without pay,
and without losing the rights to vacation, sick leave, bonus,
advancement, or other employment benefits or advantages
normally expected for the member's particular employment.
Public employees in the states of Arkansas, Illinois,
Louisiana, and Missouri are paid for up to 15 days of leave;
public employees of Indiana may take leave without any
limitation, may not be subject to discipline for taking leave,
and may bring a civil action to seek back wages, reinstatement
to the former position, and fringe benefits and seniority
rights wrongly denied or withdrawn.
However, all of the states that have adopted a leave policy
similar to AB 485 have not required payment to an employee of
a private employer for the time taken to volunteer services to
the Civil Air Patrol.
d. Leave may be taken only for an emergency operational
mission of the California Wing of the CAP
While the CAP was created with three purposes - aerospace
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education, cadet programs, and emergency services - only
service during an emergency operational mission would be
covered by the unpaid leave policy this bill would enact.
Further, this bill would permit the leave for emergency
operational services provided by the California Wing of the
CAP only, so that an employee who is a member of another wing
of the CAP will have to be certified for the leave by the
California Wing of the CAP (i.e., employee would perform
services "as part of" the California Wing), or the employee
would have to become a member of the California Wing in order
to be eligible for the protections provided by the bill.
Also, it is not clear whether the emergency operational
mission of the California Wing of the CAP, which will trigger
the unpaid leave, would be limited to those occurring in
California only, or whether missions out of state would be
covered.
Suggested amendment: The author should clarify whether
out-of-state emergency operational missions could trigger the
unpaid leave provisions of the bill. The author may also wish
to clarify whether an employee who is a CAP member, but not a
member of the California Wing, must become a member of the
California Wing to become eligible or simply participate in a
California Wing mission regardless of which Wing of the CAP he
or she belongs to.
e. Employer prohibited from requiring exhaustion of other
leave, but may require certification for the leave
AB 485 would prohibit an employer from requiring the employee
requesting the leave to first exhaust all accrued vacation
leave, sick leave, personal or other compensatory leave,
disability leave, or any other leave that may be available to
the employee in order to take the CAP leave.
However, the employer, under this bill, may require
certification from the proper Civil Air Patrol authority to
verify that the employee requesting leave is or was indeed
eligible. If the employee fails to provide the required
certification, the employer may deny the leave.
f. Employer may provide paid leave and paid benefits during
leave; must restore employee status upon return from leave
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The bill also provides that the employer, if the employer so
chooses, may provide paid leave for the CAP leave taken
pursuant to its provisions.
As to benefits other than normal compensation, the bill
provides that no benefits accrued prior to the employee taking
the CAP leave may be lost to the employee as a result of the
employee taking leave, and that the employer and employee may
negotiate for the employer to maintain the benefits of the
employee at the expense of the employer during the leave. Any
collective bargaining agreement that provides greater benefits
to the employee than that provided under the bill would
supersede the benefits provided by AB 485.
Upon completion of the employee's CAP leave, the employer
would be required to restore the employee to the same position
he or she had prior to the leave, or to another position but
with equivalent pay and seniority status, benefits, and other
terms and conditions of employment. However, the employer may
refuse to return the employee as required by this bill, for
reasons not related to the employee's exercise of rights to a
CAP leave under this bill.
g. Other protections; civil action to enforce rights
As stated earlier, this bill provides that a collective
bargaining agreement that provides greater benefits with
respect to the CAP leave would supersede the benefits provided
by the bill. An employer's obligation under such a collective
bargaining agreement would thus not be affected by the bill,
and neither would the rights of any other employee who may or
may not be eligible for the leave benefits provided to
employees who qualify. The bill also ensures that any rights
established could not be diminished by any collective
bargaining agreement entered into on or after January 1, 2010.
The bill specifically provides that an employer may not
interfere with, restrain, or deny an employee's exercise or
attempt to exercise the rights provided by the bill. Further,
an employer may not take any adverse action (discharge, expel,
suspend, discipline, or in any way discriminate) against an
employee who exercises a right provided under the bill or who
opposes a practice made unlawful by the bill.
AB 485 provides that an employee may bring a civil action in
the appropriate county superior court in order to enforce
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those rights and authorizes a court to issue an injunction or
order other equitable relief to redress any violation.
4. Protection for other employees not taking CAP leave
This bill would expressly provide that the rights granted
qualified employees under this bill do not diminish or affect
the contract rights or seniority status of an employee who is
not entitled to CAP leave.
Support : California Wing - Civil Air Patrol/United States Air
Force Auxiliary; NORCAL Group Commander, Group 5 California Wing
- Civil Air Patrol/United States Air Force Auxiliary
Opposition : None Known
HISTORY
Source : Lt. Col. Carl Morrison, Member, California Wing of the
Civil Air Patrol
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Labor and Employment Committee (Ayes 7, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 1)
Assembly Appropriations Committee (Ayes 11, Noes 4)
Assembly Floor (Ayes 66, Noes 8)
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