BILL ANALYSIS �
AB 855
Page 1
GOVERNOR'S VETO
AB 855 (Brown)
As Amended August 26, 2013
2/3 vote
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|ASSEMBLY: |46-27|(May 20, 2013) |SENATE: |23-12|(September 3, |
| | | | | |2013) |
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|ASSEMBLY: |46-30|(September 6, | | |
| | |2013) | | |
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Original Committee Reference: P.E., R. & S.S.
SUMMARY : Allows a state employee who is absent without leave
(AWOL) to demonstrate he or she is able to resume job duties by
submitting written verification from a licensed healthcare
provider, as specified, and requires the California Department
of Human Resources (CalHR) to grant reinstatement if the
appointing power invokes the "automatic resignation for state
service" provisions before the employee is absent without leave
for five consecutive work days.
The Senate amendments clarify the requirement that CalHR
reinstate an employee who was improperly terminated for being
AWOL prior to the end of the fifth consecutive working day, and
emphasize that nothing in the requirement limits the hiring
authority's right to otherwise dismiss or discipline an
employee.
EXISTING LAW :
1)Provides that absence without leave, whether voluntary or
involuntary, for a period of five consecutive days is an
automatic resignation from state service.
2)Establishes a process for a permanent or probationary
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employee, within 90 days of the effective date of such
separation, to seek reinstatement and for CalHR grant
reinstatement.
3)Allows CalHR to grant reinstatement under the following
circumstances:
a) The employee makes a satisfactory explanation as to the
cause of the absence and their failure to obtain leave;
and,
b) The employee is found to be ready, able, and willing to
resume his or her job duties or has obtained consent from
his or her appointing power for a leave of absence.
4)Specifies that an employee who is reinstated under these
provisions will not receive salary for the period of his or
her absence.
5)Specifies that if these provisions are in conflict with the
provisions of a memorandum of understanding (MOU), the MOU
will be controlling, as specified.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, "This bill will strengthen
due process for state workers who are absent without leave
(AWOL) by allowing an administrative law judge to make a
determination whether the state properly invoked the AWOL
statute to terminate an employee. This bill also codifies an
existing practice that allows an employee to demonstrate that he
or she is able to return to work by submitting written
verification from a licensed health care provider that shows the
employee is released to return to work."
According to supporters, "Under current law, state departments
have the right - but are not required - to invoke the AWOL
statute if an employee is voluntary or involuntarily AWOL for
five consecutive work days. An AWOL-resigned employee can be
reinstated if the employee satisfactorily explains why 1) the
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employee was absent; 2) failed to obtain leave and; 3) the
employee is ready, able and willing to return to work."
"An AWOL-resigned employee has two options when contesting the
appointing power's invocation of the AWOL statute. The employee
can request an informal "Coleman" hearing with the appointing
power. Improper invocations of the AWOL statute are rarely
overturned at Coleman hearings. An AWOL-resigned employee can
also file a written request for reinstatement with CalHR. At
CalHR, an administrative law judge (ALJ) can only recommend
reinstatement if the employee satisfactorily explains 1) why the
employee was absent; 2) why they failed to obtain leave and; 3)
that the employee is ready, able and willing to return to work.
The ALJ cannot consider whether or not the appointing authority
invoked the AWOL statute to wrongfully terminate the employee."
Supporters conclude, "AB 855 will allow and ALJ to consider
whether or not the AWOL statute was properly invoked by the
department. This bill could potentially save the state money by
reducing future litigation costs associated with improper
invocations of the AWOL statute."
GOVERNOR'S VETO MESSAGE :
This bill seeks to remedy the rare circumstance when the
state misapplies the
absent without leave statute, forcing both the state and
the employee to go to
court to resolve the dispute. In these cases, both the
state and the employee
incur both delay and significant expenses. This does not
make sense.
I am directing the Government Operations Agency and CalHR,
as well as all
of my department heads, to reinstate an employee in the
limited instances
when the state has improperly dismissed that employee under
Government
Code 19996.2, and there are no other grounds for dismissal.
CalHR should
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develop any required administrative or regulatory changes
necessary to
effectuate this change.
Analysis Prepared by : Karon Green / P.E., R. & S.S. / (916)
319-3957
FN: 0002920