BILL ANALYSIS Ó AB 583 Page 1 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 AB 583 Page 2 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. AB 583 Page 3 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. AB 583 Page 4 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: AB 583 Page 5 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 AB 583 Page 6 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 AB 583 Page 7 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. AB 583 Page 8 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." AB 583 Page 9 ( 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 AB 583 Page 10 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. AB 583 Page 11 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 AB 583 Page 12 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 AB 583 Page 13