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 --