BILL ANALYSIS Ó SENATE COMMITTEE ON VETERANS AFFAIRS Senator Jim Nielsen, Chair 2015 - 2016 Regular Bill No: AB 583 Hearing Date: 6/9/15 ----------------------------------------------------------------- |Author: |Chávez | |-----------+-----------------------------------------------------| |Version: |4/15/15 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Wade Cooper Teasdale | | | | ----------------------------------------------------------------- Subject: Military service: employment protections. DESCRIPTION Summary: Existing law provides employment and reemployment protections for members of the California National Guard, when they must leave positions of private employment within California, due to being called onto active state service by the Governor of California or onto active federal service by the President of the United States. This bill extends those protections to members of National Guards of other states, when they must leave positions of private employment within California, due to having been called onto active state service by other states' Governors or onto active federal service by the President. Existing law: Federal law: The Uniformed Services Employment and Re-Employment Rights Act (USERRA), 38 USC 4301 et seq.: 1)Protects currently serving members and veterans of the United States Armed Forces from employment discrimination on the basis of their service or status. AB 583 (Chávez) Page 2 of ? 2)Allows currently serving members of the Armed Forces to regain their civilian jobs following a period of active federal uniformed service. (Applies to members of any military branch's federal active component, federal reserve component, or federally recognized state National Guard.) State law: 1)Provides specified 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. 2)Requires the county district attorney, under specified conditions, to act as an attorney on behalf of a service member in any action against an employer who fails or refuses to comply with those provisions. This bill : 1)Extends existing employment protections to members of the National Guard of any state, when they are called onto active military service by that state's Governor or by the President of the United States, and who have left a position in private employment in California. 2)For the purpose of enhancing clarity, reorganizes and rewrites existing law pertaining to employment and reemployment protections for members of the California National Guard, who must leave positions of private employment within California, when called to active military service by the Governor of California. BACKGROUND National Guard of the United States The vast majority of California National Guard soldiers and airmen are the traditional part-time citizen-soldiers (also known as M-Day soldiers). Typically, these individuals work at full-time civilian careers although some are college students. AB 583 (Chávez) Page 3 of ? They drill with their Guard units at least one weekend per month and perform a minimum of two weeks (but sometimes longer) on active duty status in annual training. When necessary, the federal government mobilizes them onto operational active duty tours (including combat), integrating them into the federal military force within their branch of service (Army or Air Force). This mobilization is ordered under the authority of Title 10 of the U.S. Code, which generally governs the full-time active duty armed forces. When any state's National Guard units are not under federal Title 10 control, the Governor serves the commander-in-chief of the state's Guard units. As commander-in-chief, the Governor can directly access and utilize the Guard's federally assigned aircraft, vehicles and other equipment so long as the federal government is reimbursed for the use of fungible equipment and supplies such as fuel, food stocks, etc. This is the authority under which the Governor activates and deploys National Guard forces in response to natural disasters. It is also the authority under which the Governor deploys National Guard forces in response to man-made emergencies such as riots and civil unrest, or terrorist attacks. The Governor can activate Guard personnel to state active service in response to natural or man-made disasters or Homeland Defense missions. State active service is based on California statute and policy and is funded by state funds. While on state active service, Guard members are under the command and control of the Governor, which is exercised through The Adjutant General (TAG). Another alternative is for Guard members to be mobilized onto full-time duty under Title 32, U.S. Code. Typically, this involves an internal state crisis, such as a flood or earthquake, where the Governor proclaims a state emergency and the President then proclaims a federal emergency. Under Title 32, the Soldiers and Airmen are federally funded, but command and control remains with the Governor through the TAG. Title 32 activation can be effected only by the President or Secretary of Defense - and requires the approval and consent of the state Governor. Because mobilization under Title 32 keeps Guard members under AB 583 (Chávez) Page 4 of ? state control, the federal Posse Comitatus Act (PCA) is not abridged. Enacted by Congress in 1878, the PCA limits the powers of the federal government in using federal military personnel to enforce state laws. Some Californians are members of the National Guards of neighboring states and are subject to being called to state active duty by the Governors of those states. Note: Generally, the Governor will employ the state's National Guard assets for emergencies within the state. If there are insufficient soldiers or equipment, agreements such as the Emergency Management Assistance Compact allow the state to lend and borrow soldiers and equipment from other states. If personnel or re-equipment insufficiencies persist, the Governor can request federal assets. Federal or state military support of state or local civilian government is termed Defense Support to Civil Authorities (DSCA). Federal Employment Protections The federal USERRA law protects employees who serve in the U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard. This includes members of the Army or Air National Guard, when they are away from their civilian jobs for federal active service under either Title 10 or Title 32; however, USERRA does not apply when National Guard members must leave their civilian jobs when called to state active duty by a Governor. For these situations, protections must be provided by state law. As is true in many areas of employment law, California provides additional protections. Members of the California National Guard who are called to active duty are entitled to unlimited paid leave and reinstatement to their former position or a position of similar seniority, pay, and status, without loss of retirement or other benefits. Employees must apply for reinstatement within 40 days after they are discharged, and cannot be terminated without cause for one year. Employees who are in the Guard, Reserves, or Naval Militia are entitled to up to 17 days of unpaid leave per year for military training, drills, encampment, naval cruises, special exercises, or similar activities. Employers may not terminate employees or limit their benefits or seniority because an employee has a temporary disability resulting from duty in the National Guard or Naval Militia (for up to 52 weeks). And, employers may not AB 583 (Chávez) Page 5 of ? discriminate against employees because of their membership in any branch of the state or federal armed services. State Employment Protections Military and Veterans (MVC) Code Section 394.5 provides military personnel with the right to take temporary leaves of absence without pay to perform military duties, as is stated below verbatim: 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. MVC § 395.06 provides military members with a general right to employment reinstatement, as summarized below: 1)Requires private employers in California, with respect to employees, who are called to active military serve as members of the California National Guard, to do the following: a) Consider the employee as having been on a leave of absence during the period of the employee's active military service. b) Restore the employee to the former position or a position of similar seniority, status, and pay without loss of retirement or other benefits, unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so, and c) Not discharge the employee from his or her position without cause within one year after being restored to the position. 2)Provides that in order to be eligible for these protections, the employee must meet all of the following criteria: a) Have been called to active duty by the Governor of AB 583 (Chávez) Page 6 of ? California or by the President of the United States, b) Not have been employed in a part time or temporary position, c) Have received a certificate of satisfactory active service from the National Guard, d) Still be qualified to perform the duties of the private position, and e) Make application for reemployment within 40 days after release from service. 3. In the case of an employee who held a part-time position, that employee shall be eligible for the same protections if the employee meets all of the following criteria and if the former position, or a position of similar seniority, status, and pay exists. The employee must: a) Have been called to active duty by the Governor or by the President of the United States b) Have received a certificate of satisfactory active service from the National Guard, c) Still be qualified to perform the duties of the private position, and d) Make application for reemployment within five days after release from service. COMMENT Author Statement "We should ensure women and men coming home from deployment can return to their civilian jobs, National Guard members already give up months of time with their families to serve our Country and our State. Let's not ask them to also sacrifice their job after they have answered the call to service." Related Legislation AB 1936 (Knight, 2012) would have required that a state employee who is granted a short-term military leave of absence for inactive duty receive his or her state salary for the first 30 calendar days of inactive duty served during a fiscal year. (Held, Senate Appropriations Committee) AB 583 (Chávez) Page 7 of ? SB 569 (Morrow, 2002) would have provided that state employees who are on inactive military training duty are eligible for paid leave from the state. (Held, Assembly Appropriations Committee) SB 1950 (Lewis, Chapter 928, Statutes of 2000) revises state provisions to conform to recent changes in federal law to provide that inactive duty military training also qualifies for paid military leave for public employees. POSITIONS Sponsor: Author Support: American Legion, Department of California AMVETS, Department of California California Association of County Veterans Service Officers California State Commanders Veterans Council Military Officers Association of America, California Council of Chapters U.S. Department of Defense, Office of Military Community and Family Policy Veterans of Foreign Wars, Department of California Vietnam Veterans of America, California State Council Oppose: None received -- END --