Amended in Assembly April 15, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 583


Introduced by Assembly Member Chávez

February 24, 2015


An act to amend Section 395.06 of the Military and Veterans Code, relating to military service.

LEGISLATIVE COUNSEL’S DIGEST

AB 583, as amended, Chávez. Military service: employment protections.

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 wouldbegin insert reorganize these provisions, and wouldend insert 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 395.06 of the Military and Veterans Code
2 is amended to read:

begin delete
3

395.06.  

(a) (1) Every officer and enlisted member of the
4California National Guard who, in order to undertake active
5military duty in the service of the state when the Governor has
6issued a proclamation of a state of insurrection pursuant to Section
7143, or a proclamation of a state of extreme emergency or when
8the California National Guard is on active duty pursuant to Section
9146, or a service member called to active service or duty under
10Chapter 7.5 (commencing with Section 400), has left a position,
11other than a temporary position, in private employment, receives
12a certificate of satisfactory service in the California National Guard
13or an equivalent thereof, is still qualified to perform the duties of
14that position, and makes application within 40 days after release
15from service shall be considered as on leave of absence during that
16period and shall be restored by the former employer to the former
17position or to a position of similar seniority, status, and pay without
18loss of retirement or other benefits, unless the employer’s
19circumstances have so changed as to make it impossible or
20unreasonable to do so, and shall not be discharged from the position
21without cause within one year after being restored to the position.

22(2) Every officer and enlisted member of the National Guard
23of a state other than California who, in order to undertake active
24military duty in the service of that state when the Governor of that
25 state has issued a proclamation of a state of insurrection, or a
P3    1proclamation of a state of extreme emergency or when the National
2Guard of that state is on active duty, or a service member called
3to active service or duty by the Governor of that state or into active
4federal service by the President of the United States pursuant to
5Title 10 or 32 of the United States Code, has left a position, other
6than a temporary position, in private employment in California,
7receives a certification of satisfactory service in the National Guard
8of another state or an equivalent thereof, is still qualified to perform
9the duties of that position, and makes application within 40 days
10after release from service shall be considered as on leave of absence
11during that period and shall be restored by the former employer
12to the former position or to a position of similar seniority, status,
13and pay without loss of retirement or other benefits, unless the
14employer’s circumstances have so changed as to make it impossible
15or unreasonable to do so, and shall not be discharged from the
16position without cause within one year after being restored to the
17position.

18(b) Every officer and enlisted member of the California National
19Guard, or the National Guard of a state other than California, who
20has left a part-time position in private employment for purposes
21of service pursuant to paragraph (1) or (2) of subdivision (a),
22receives a certificate of satisfactory service in the California
23National Guard, or the National Guard of another state or an
24equivalent thereof, is still qualified to perform the duties of that
25position, and makes application within five days after release from
26service shall be considered as on leave of absence during that
27period and shall be restored by the former employer to the former
28position, or to a position of similar seniority, status, and pay, if
29any exists, and shall not be discharged from the position without
30cause within one year after being restored to the position.

end delete
31begin insert

begin insert395.06.end insert  

end insert
begin insert

(a) A private employer shall consider a former
32employee who meets the requirements of subdivision (b) as having
33been on a leave of absence during any period of the former
34employee’s active service in the National Guard of any state, and
35is subject to both of the following:

end insert
begin insert

36(1) If the former position was a full-time position, and not a
37temporary position, the former employer shall restore the former
38employee to the former position or to a position of similar seniority,
39status, and pay without loss of retirement or other benefits, unless
40the employer’s circumstances have so changed as to make it
P4    1impossible or unreasonable to do so, and shall not discharge the
2former employee from the position without cause within one year
3after restoring him or her to the position.

end insert
begin insert

4(2) If the position was a part-time position, and not a temporary
5position, the former employer shall restore the former employee
6to the former position, or to a position of similar seniority, status,
7and pay, if any exists, and shall not discharge the former employee
8from the position without cause within one year after restoring
9him or her to the position.

end insert
begin insert

10(b) To be eligible for the employment protections specified in
11paragraph (1), the former employee shall meet all of the following
12requirements:

end insert
begin insert

13(1) He or she is an officer or enlisted member of the National
14Guard of any state.

end insert
begin insert

15(2) He or she was called to active duty by the Governor of the
16state where he or she serves in the National Guard or by the
17President of the United States.

end insert
begin insert

18(3) He or she received a certificate of satisfactory service in the
19National Guard of the state where he or she serves in the National
20Guard.

end insert
begin insert

21(4) He or she is still qualified to perform the duties of the
22position.

end insert
begin insert

23(5) If he or she left a full-time position, he or she made
24application for reemployment within 40 days of being released
25from service. If he or she left part-time employment, he or she
26made application for reemployment within five days of being
27released from service.

end insert

28(c) If any employer fails or refuses to comply with this section,
29the superior court of the county in which the employer maintains
30a place of business may, upon the filing of a motion, petition, or
31other appropriate pleading by the person entitled to the benefits
32of this section, specifically require the employer to comply with
33this section and compensate the person for any loss of wages or
34benefits suffered by reason of the employer’s unlawful action. The
35court shall order a speedy hearing and shall advance it on the
36calendar. Upon application to the district attorney of the county
37in which the employer maintains a place of business by any person
38claiming to be entitled to the benefits of this section, the district
39attorney, if reasonably satisfied that the person is entitled to these
40benefits, shall appear and act as attorney for the person in the
P5    1amicable adjustment of the claim or in the filing of any motion,
2petition, or other appropriate pleading and the prosecution thereof
3to specifically require the employer to comply with this section.
4No fees or court costs are required to be paid by the person
5applying for these benefits.

6(d) Upon application to the city prosecutor of the city in which
7the employer maintains a place of business by any person claiming
8to be entitled to the benefits of this section, the city prosecutor, if
9reasonably satisfied that the person is entitled to these benefits,
10may appear and act as attorney for the person in the amicable
11adjustment of the claim or in the filing of any motion, petition, or
12other appropriate pleading and the prosecution thereof to
13specifically require the employer to comply with this section. No
14fees or court costs are required to be paid by the person applying
15for these benefits.

16

SEC. 2.  

If the Commission on State Mandates determines that
17this act contains costs mandated by the state, reimbursement to
18local agencies and school districts for those costs shall be made
19pursuant to Part 7 (commencing with Section 17500) of Division
204 of Title 2 of the Government Code.



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