BILL ANALYSIS Ó
AB 583
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Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 583
(Chávez) - As Amended 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
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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.
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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.
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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:
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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
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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
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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.
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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."
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( 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
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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
calledup 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 states 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.
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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
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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
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