BILL ANALYSIS Ó
SENATE COMMITTEE ON VETERANS AFFAIRS
Senator Jim Nielsen, Chair
2015 - 2016 Regular
Bill No: AB 583 Hearing Date: 6/9/15
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|Author: |Chávez |
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|Version: |4/15/15 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Wade Cooper Teasdale |
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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.
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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.
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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
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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
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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
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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)
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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
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