BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 583|
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THIRD READING
Bill No: AB 583
Author: Chávez (R)
Amended: 4/15/15 in Assembly
Vote: 21
SENATE VETERANS AFFAIRS COMMITTEE: 5-0, 6/9/15
AYES: Nielsen, Hueso, Allen, Nguyen, Roth
SENATE APPROPRIATIONS COMMITTEE: 5-0, 6/22/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NO VOTE RECORDED: Bates, Nielsen
ASSEMBLY FLOOR: 77-0, 5/7/15 (Consent) - See last page for
vote
SUBJECT: Military service: employment protections
SOURCE: Author
DIGEST: This bill extends existing employment and reemployment
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 of the United States.
ANALYSIS:
Existing federal law, the Uniformed Services Employment and
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Re-Employment Rights Act (USERRA), 38 USC 4301:
1)Protects currently serving members and veterans of the United
States Armed Forces from employment discrimination on the
basis of their service or status.
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.)
Existing state law:
1)Provides specified protections for members of the California
National Guard (CNG) 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)Reorganizes and rewrites, for the purpose of enhancing
clarity, existing law pertaining to employment and
reemployment protections for members of the CNG, 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 CNG
soldiers and airmen are the traditional part-time
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citizen-soldiers (also known as M-Day soldiers). 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 a Governor deploys national guard forces
in response to man-made emergencies such as riots and civil
unrest, or terrorist attacks.
A Governor can activate national 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
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
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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.
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 beyond those contained in federal law.
Members of the CNG 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 discharge, and cannot be
terminated without cause for one year.
Employees who are in the national 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 CNG or Naval Militia (for up to 52 weeks). And, employers
may not 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 CNG 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,
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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 CNG, 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
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 CNG,
d) Still be qualified to perform the duties of the private
position, and
e) Apply for reemployment within 40 days after release from
service.
1)In the case of an employee who held a part-time position, that
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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 the
President,
b) Have received a certificate of satisfactory active
service from the CNG,
c) Still be qualified to perform the duties of the private
position, and
d) Apply for reemployment within five days after release
from service.
Related/Prior 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, suspense, Senate Committee on Appropriations)
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, suspense, Assembly Committee on
Appropriations)
SB 1950 (Lewis, Chapter 928, Statutes of 2000) revised 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee, potentially
minor reimbursable costs to local district attorneys (General
Fund).
SUPPORT: (Verified6/23/15)
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American Legion, Department of California
AMVETS, Department of California
California Association of County Veterans Service Officers
California Professional Firefighters
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
OPPOSITION: (Verified6/23/15)
None received
ASSEMBLY FLOOR: 77-0, 5/7/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark
Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,
Wood, Atkins
NO VOTE RECORDED: Campos, Roger Hernández, Steinorth
Prepared by:Wade Cooper Teasdale / V.A. / (916) 651-1503
6/25/15 8:44:47
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