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