BILL ANALYSIS �
AB 556
Page 1
Date of Hearing: April 24, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hern�ndez, Chair
AB 556 (Salas) - As Amended: April 11, 2013
SUBJECT : Employment Discrimination: Military and Veterans.
SUMMARY : Prohibits employment discrimination against all active
duty military and veterans of the armed services. Specifically,
this bill :
1)Makes it public policy of the state to protect and safeguard
the right and opportunity of all persons to seek, obtain and
hold employment without discrimination or abridgment on
account of military and veteran status.
2)Recognizes and declares the opportunity to seek, obtain, and
hold employment without discrimination because of military and
veteran status a civil right.
3)Adds "military and veteran status," to the list of categories
protected under the Fair Employment and Housing Act (FEHA)
from discrimination by employers, labor organizations and
employment agencies with respect to all aspects of employment
and membership in a labor union.
4)Defines "military and veteran status" to mean a member or
veteran of the United States Armed Forces, United States Armed
Forces Reserve, the United States National Guard, and the
California National Guard.
5)Provides that nothing in this bill shall be interpreted as
preventing the ability of employers to identify members of the
military or veterans for purposes of awarding a veteran's
preference as permitted by law.
EXISTING FEDERAL LAW :
1)Protects, under the Uniformed Services Employment and
Reemployment Rights Act (USERRA), both active duty military
and veterans against discrimination by providing that a person
who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform
service in a uniformed service shall not be denied initial
AB 556
Page 2
employment, reemployment, retention in employment, promotion,
or any benefit of employment by an employer on the basis of
that membership, application for membership, performance of
service, application for service, or obligation. (38 U.S.C.
4311.)
2)Finds an employer has engaged in actions prohibited by USERRA
if a person's membership, application for membership, service,
application for service, or obligation for service in the
uniformed services is a motivating factor in the employer's
action. (38 U.S.C. 4311.)
3)Provides that any person whose absence from a position of
employment is necessitated by reason of service in the
uniformed services shall be entitled to specified reemployment
rights and benefits and other employment benefits of this
chapter. (38 U.S.C. 4312.)
EXISTING STATE LAW :
1)Protects active duty military against certain employment
practices by providing that: no person or public entity or
official shall discriminate against any officer, warrant
officer or enlisted member of the military or naval forces of
the state or of the United States because of that membership,
and that no member of the military forces shall be prejudiced
or injured by any person, employer, or officer or agent of any
corporation, company, or firm with respect to that member's
employment, position or status or be denied or disqualified
for employment by virtue of membership or service in the
military forces of this state or of the United States.
(Military and Veterans Code section 394.)
2)Provides that no employer or officer or agent of any
corporation, company, or firm, or other person, shall
discharge any person from employment because of the
performance of any ordered military duty or training or by
reason of being an officer, warrant officer, or enlisted
member of the military or naval forces of this state, or
hinder or prevent that person from performing any military
service or from attending any military encampment or place of
drill or instruction he or she may be called upon to perform
or attend by proper authority; prejudice or harm him or her in
any manner in his or her employment, position, or status by
reason of performance of military service or duty or
AB 556
Page 3
attendance at military encampments or places of drill or
instruction; or dissuade, prevent, or stop any person from
enlistment or accepting a warrant or commission in the
California National Guard or Naval Militia by threat or injury
to him or her in respect to his or her employment, position,
status, trade, or business because of enlistment or acceptance
of a warrant or commission. (Military and Veterans Code
section 394.)
3)Provides that no private employer or officer or agent of any
corporation, company, or firm, or other person, shall restrict
or terminate any collateral benefit for employees by reason of
an employee's temporary incapacitation incident to duty in the
National Guard or Naval Militia. As used in this subdivision,
"temporary incapacitation" means any period of incapacitation
of 52 weeks or less. (Military and Veterans Code section 394.)
4)Provides that a violation of the foregoing state laws is a
misdemeanor, and that any person violating any of the
provisions of this section shall be liable for actual damages
and reasonable attorney's fees incurred by the injured party.
(Military and Veterans Code section 394.)
5)Provides that 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. (Military and Veterans Code section
394.5.)
6)Provides that any public employee 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 is entitled to a
temporary military leave of absence as provided by federal law
while engaged in military duty ordered for purposes of active
military training, inactive duty training, encampment, naval
cruises, special exercises or like activity, providing that
the period of ordered duty does not exceed 180 calendar days,
including time involved in going to and returning from that
duty. Specifies that a local public agency may, but is not
AB 556
Page 4
required to, provide paid military leave of absence for
periods of inactive duty training. (Military and Veterans Code
section 395.)
7)Provides that a covered employee has an absolute right to be
restored to the former office or position and status formerly
had by him or her in the same locality and in the same office,
board, commission, agency, or institution of the public agency
upon the termination of temporary military duty. If the
office or position has been abolished or otherwise has ceased
to exist during his or her absence, he or she shall be
reinstated to a position of like seniority, status, and pay if
a position exists, or if no position exists the employee shall
have the same rights and privileges that he or she would have
had if he or she had occupied the position when it ceased to
exist and had not taken temporary military leave of absence.
(Military and Veterans Code section 395.)
8)Establishes that any public employee who has been in the
service of the public agency from which the leave is taken for
a period of not less than one year immediately prior to the
date upon which a temporary military leave of absence begins,
shall receive the same vacation, sick leave, and holiday
privileges and the same rights and privileges to promotion,
continuance in office, employment, reappointment to office, or
reemployment that the employee would have enjoyed had he or
she not been absent therefrom; excepting that an uncompleted
probationary period, if any, in the public agency, must be
completed upon reinstatement as provided by law or rule of the
agency. For the purposes of this section, in determining the
one year of service in a public agency all service of the
employee in recognized military service shall be counted as
public agency service. (Military and Veterans Code section
395.)
9)States that the FEHA protection against discrimination on
account of sex shall not be construed to prohibit the right of
an employer to use veteran status as a factor in employee
selection or to give special consideration to Vietnam-era
veterans. (Government Code section � 12940.)
FISCAL EFFECT : Unknown
COMMENTS : In support of the bill, the author states, "The bill
raises the issues of discrimination, and unfair employment
AB 556
Page 5
practices against veterans and members of the uniformed services
(US military, US and California National Guard). Current law
provides protections for several groups which have traditionally
been targeted and discriminated against. These groups have
traditionally been discriminated against in many aspects of
life, including employment. In the spirit of equality and civil
rights, fair hiring practices are essential to ensuring everyone
has an opportunity to better their condition by attaining a
higher standard of living through employment. Current law
doesn't provide sufficient protections for Veterans, which
comprise approximately 1.8 million of California's estimated
22.3 million residents (according to CalVet). Military members,
both active and reserve, and Veterans fall outside the scope of
comprehensive protections that exist within the Fair Employment
and Housing Act (FEHA)."
Veteran Unemployment Issues
For the last decade, issues with veteran unemployment have been
closely documented and studied. Although veteran unemployment
is trending downwards, it is still significantly higher than
civilian peers. As a recent Time magazine article stated, "No
matter how you spin it, the truth remains that for Iraq and
Afghanistan veterans, the unemployment rate is unacceptable."
According to the Bureau of Labor Statistics, the unemployment
rate for post 9/11 veterans was 9.9% in 2012, a full two
percentage points higher than the unemployment rate for
non-veterans (7.9%). For younger veterans (aged 18-24), they
experienced an unemployment rate around 20% in 2012, more than
five percentage points higher than non-veterans in the same
age-group. Even older-post-9/11 veterans (between the ages of
45 and 54) had more difficultly obtaining a job than
non-veterans, experiencing an unemployment rate more than a
percentage point higher than their civilian counterpart
(hovering around 7.7%).
According to the Times article cited above:
"No matter how you cut the data, the fact remains that
AB 556
Page 6
despite the technical, leadership and entrepreneurial
skills a veteran gains in service, today's generation of
veterans is facing unemployment rates higher on average
than their civilian peers."
Adding to veterans' already grim prospects to secure employment
on return from serving is the fact that many veterans experience
long periods of unemployment. In January of 2013, Iraq and
Afghanistan Veterans of America surveyed its membership to
determine how long its unemployed members have been without
work. Of its members unemployed at the time, close to 34% had
been out of work for longer than a year; more than 17% had been
unemployed for more than two years.
Perceived Employer Misgivings About Hiring Veterans
The Time article also addressed what is perceived to be the root
cause for the high unemployment rates of veterans: the cultural
divergence between military life and civilian life. According
to the article:
"The real problem lies in the systemic challenges that
cause higher rates of unemployment for our veterans.
Today's business leaders don't understand the value that
veterans bring to the table.
This is one of the first generations of business leaders
that largely didn't serve in the military, which poses real
cultural barriers to understanding military skills and
experience. In a June 2012 report, the Center for a New
American Security noted that one of the main barriers to
hiring veterans, from the perspective of businesses, is
that they struggle to understand how military skills
translate to increasing the bottom line.
In addition, there remain legal barriers that prevent
veterans from doing the work that they did in the military.
AB 556
Page 7
Many veterans return home ready to continue the jobs that
they did in the military in the civilian sector, only to
find that they need to re-train to do the job they've been
doing, in order to meet the requirements for a civilian
license or certification. While Congress and local
officials have been working to break this barrier, it still
remains a significant challenge to veteran employment today
in many sectors." ("The Ground Truth on Veterans'
Unemployment," Times, March 22, 2013)
The stigma attached to Post-Traumatic Stress Disorder (PTSD) has
also cautioned employers from hiring veterans. An army veteran
of South Lake Tahoe, who served in Afghanistan in 2006 and 2007,
found it difficult even to secure part-time employment because
job interviews would "taper off" as soon as the interviewer
realized he was a war veteran. According to the army veteran,
"With all the ski resorts [in Lake Tahoe], you would think it
would be fairly simple [to get a job], . . . but because of
PTSD, companies won't hire veterans. It's because they're
afraid they're going to have an episode in the work place."
("Veteran unemployment dropped to 9.9% in 2012," CNN Money,
March 20, 2013)
Expanding FEHA's Protection Against Employment
Discrimination to Military Personnel and Veterans
Existing federal and state laws grant military personal and
veterans a wide variety of rights in the workplace. More
specifically, federal law already provides a regulatory scheme
to protect military and veteran personal from employment
discrimination in a civil work environment. In addition to
federal law, state law also protects military personal from
employment discrimination, however not veterans. To remedy
this, this bill expands FEHA's protection against employment
discrimination to military personal and veterans. It
accomplishes this by amending FEHA to include military and
veteran status as a protected class.
Since this bill merely adds military and veteran status as a
protected class to FEHA, FEHA's employment protection statutes
and abundant case-law would become controlling. In most cases,
this provides military personal and veterans with greater
AB 556
Page 8
protection against discrimination than federal law because
FEHA's provisions are usually broader. An example of this is
that under federal law, only employers are prohibited from
discriminating against military personal and veterans; this bill
would prohibit labor organizations, employment agencies, and
apprenticeship programs or other training programs leading to
employment from discriminating against military personal and
veterans. Similarly, this bill would prohibit employment
practices that are facially neutral in their treatment of
military personal and veterans but that are in fact harsher on
them, something that is not expressly covered under USERRA.
Although FEHA's provisions are usually broader than federal law,
this bill's protection against military personal and veteran
discrimination is narrower in at least one aspect. Under FEHA,
only employers employing five or more individuals on a regular
basis are subjected to its employment discrimination provisions;
USERRA prohibits any "person, institution, organization, or
other entity that pays salary or wages for work performed or
that has control over employment opportunities" from
discriminating on account of military or veteran status,
regardless on how many employees work for the employer.
The author addresses the relationship with existing law as
follows:
"Although there are state and federal laws in place to
discourage employment discrimination, such discrimination still
persists. Active members of the Military and National Guard,
and those who are to be activated, are protected from employment
termination based on their obligations. However, there are
still many instances where the burden of obligations is not the
direct cause of the express act of discrimination or wrongful
termination based on discrimination. Current law has loopholes
that need to be closed. Additionally, there many of the
situations outlined in the Fair Employment and Housing Act that
are not covered under state and federal anti-military
discrimination laws. For example Non-Job related inquiry can be
used to circumvent the
restrictions in place against asking about disabilities,
including Post-Traumatic Stress Disorders and Traumatic Brain
Injuries. Other examples are the right to be free from
harassment and the right to be free from a hostile anti-military
work environment.
AB 556
Page 9
Veterans of the United States Armed Forces are currently not
protected from discriminatory hiring practices that may come as
a result of incorrect assumptions regarding the prevalence of
Post-Traumatic Stress Disorder, personality issues,
insensitivity to military culture, and because military
applicants are non-traditional applicants. Employers express
concern over military members stating that they are too
non-traditional, too old and will not take orders from younger
civilians, and that they have fallen behind their civilian
counterparts.
This bill would remedy these injustices and would allow Veterans
to attain or not attain employment based solely on their merit
instead of prejudice and discrimination."
Promoting and Protecting Military and Veteran Hiring Preferences
This bill also liberates employers to adopt policies that
identify military personnel and veterans for employment
preferences by shielding employers from charges that such
policies are discriminatory. The United States Supreme Court
has also affirmed that under Title VII, such military and
veteran employment preference policies are not discriminatory.
The federal government has also supported such policies by
offering a $2,400 tax credit to employers who hire a veteran who
has been unemployed for at least four weeks and a $5,600 tax
credit to employers who hire veterans that have been jobless for
at least six months.
REGISTERED SUPPORT / OPPOSITION :
Support
American Legion, Department of California
AMVETS, Department of California
California Association of County Veterans Service Officers
California Labor Federation, AFL-CIO
California State Commanders Veterans Council
VFW, Department of California
Vietnam Veterans of California
Opposition
None on file
AB 556
Page 10
Analysis Prepared by : Timothy Lepore / Benjamin Ebbink / L. &
E. / (916) 319-2091