Code Section Group

Military and Veterans Code - MVC

DIVISION 2. THE MILITARY FORCES OF THE STATE [100 - 567]

  ( Division 2 enacted by Stats. 1935, Ch. 389. )

PART 1. THE STATE MILITIA [100 - 491.3]

  ( Part 1 enacted by Stats. 1935, Ch. 389. )

CHAPTER 7. Privileges and Penalties [389 - 399.5]
  ( Chapter 7 enacted by Stats. 1935, Ch. 389. )

389.
  

(a) As used in this chapter, “temporary military leave of absence” means a leave of absence from public employment to engage in ordered military duty for a period which by the order is not to exceed 180 calendar days including travel time for purposes of active military training, encampment, naval cruises, special exercises or like activity as a member of the reserve corps or force of the armed forces of the United States, or the National Guard, or the Naval Militia.

(b) “Public employee” means any officer or employee of a public agency, except for those officers or employees of the state subject to the provisions of Chapter 11 (commencing with Section 19770) of Part 2 of Division 5 of Title 2 of the Government Code.

(c) “Public agency” means the state, or any county, city and county, city, municipal corporation, school district, irrigation district, water district, or other district.

(d) “Armed forces” or “armed forces of the United States” means the “armed forces” as defined in Section 18540 of the Government Code.

(e) “Recognized military service” means service as defined in Section 18540.3 of the Government Code.

(Amended by Stats. 1973, Ch. 174.)

390.
  

No person belonging to or on duty with the active militia of the state, or engaged in the performance of military duty on call of the Governor or in pursuance of an order of the President of the United States shall be arrested on any civil process while going to, remaining at, or returning from any place at which he may be required to attend for military duty.

(Amended by Stats. 1967, Ch. 1188.)

391.
  

Every member of the active militia shall be exempt from road tax and head tax of every description, from jury duty (including service on coroners’ juries) except that members of the National Guard who are not on active duty shall not be exempt from jury duty in any noncriminal proceeding, and from service on any posse comitatus, if the member furnishes the certificate of his or her immediate commanding officer that the member has performed the duties required of him or her for the year immediately preceding a summons to act as juror or during the period of the member’s service if less than one year.

(Amended by Stats. 1994, Ch. 114, Sec. 46. Effective January 1, 1995.)

392.
  

Members of the militia in the active service of the State shall not be liable civilly or criminally for any act or acts done by them in the performance of their duty.

(Enacted by Stats. 1935, Ch. 389.)

393.
  

(a) In an action or proceeding of any nature commenced in any court against an active member of the militia or a member of the militia in active service in pursuance of an order of the President of the United States as a result of a state emergency for an act done by such member in an official capacity in the discharge of duty, or an alleged omission to do an act which it was the member’s duty to perform, or against any person acting under the authority or order of an officer or by virtue of a warrant issued by an officer pursuant to law:

(1) The defendant in all cases may make a general denial and give special matter in evidence.

(2) A defendant in whose favor a final judgment is rendered in any such action or proceeding shall recover treble costs.

(b) The Attorney General shall defend such active member or person where the action or proceeding is civil. The senior judge advocate on the state staff or one of the judge advocates shall defend such active member or person where the action or proceeding is criminal, and the Adjutant General shall designate the senior judge advocate on the state staff, or one of the judge advocates, to defend such active member or person.

(c) In the event such active member or person is not indemnified by the federal government, Section 825 of the Government Code shall apply to such active member or person.

(Amended by Stats. 1980, Ch. 114.)

394.
  

(a) A person shall not discriminate against an officer, warrant officer, or enlisted member of the military or naval forces of the state or of the United States because of that membership. A member of the military forces shall not be prejudiced or injured by a person, employer, or officer or agent of a corporation, company, or firm in terms, conditions, or privileges with respect to that member’s employment, position or status or be denied or disqualified for employment by virtue of membership or service in the military forces of this state or of the United States.

(b) An officer or employee of the state, or of any county, city and county, municipal corporation, or district shall not discriminate against an officer, warrant officer, or enlisted member of the military or naval forces of the state or of the United States because of that membership. A member of the military forces shall not be prejudiced or injured by an officer or employee of the state, or of any county, city and county, municipal corporation, or district in terms, conditions, or privileges with respect to that member’s employment, appointment, position, or status or be denied or disqualified for or discharged from that employment or position by virtue of membership or service in the military forces of this state or of the United States.

(c) A person shall not prohibit or refuse entrance to an officer or enlisted member of the Army or Navy of the United States or of the military or naval forces of this state into any public entertainment or place of amusement or into any of the places described in Sections 51 and 52 of the Civil Code because that member wears the uniform of the organization to which he or she belongs.

(d) An employer or officer or agent of a corporation, company, or firm, or other person, shall not discharge a person from employment because of the performance of any ordered military duty or training or by reason of being an officer, warrant officer, or enlisted member of the military or naval forces of this state, or hinder or prevent that person from performing any military service or from attending any military encampment or place of drill or instruction he or she may be called upon to perform or attend by proper authority; prejudice or harm him or her in any manner in his or her terms, conditions, or privileges of employment, position, or status by reason of performance of military service or duty or attendance at military encampments or places of drill or instruction; or dissuade, prevent, or stop any person from enlistment or accepting a warrant or commission in the California National Guard or Naval Militia by threat or injury to him or her in respect to his or her terms, conditions, or privileges of employment, position, status, trade, or business because of enlistment or acceptance of a warrant or commission.

(e) (1) A private employer or officer or agent of a corporation, company, or firm, or other person, shall not restrict or terminate any collateral benefit for employees by reason of an employee’s temporary incapacitation incident to duty in the National Guard or Naval Militia. As used in this subdivision, “temporary incapacitation” means any period of incapacitation of 52 weeks or less.

(2) As used in this subdivision, “benefit” includes, but is not limited to, health care which may be continued at the employee’s expense, life insurance, disability insurance, and seniority status.

(f) A person who provides lending or financing shall not discriminate against a person with respect to the terms of a loan or financing, including, but not limited to, the finance charge, based on that person’s membership in the military or naval forces of this state or of the United States. With respect to a loan or credit transaction covered by Section 987 of Title 10 of the United States Code, as amended by 126 Stat. 1785 (Public Law 112-239), and Part 232 (commencing with Section 232.1) of Subchapter M of Chapter I of Subtitle A of Title 32 of the Code of Federal Regulations, as amended as published on July 22, 2015, on Page 43560 in Number 140 of Volume 80 of the Federal Register, a person that does not market or extend those transactions to covered borrowers shall not be in violation of this section. For purposes of this section, a covered borrower has the same meaning as provided for in Part 232 (commencing with Section 232.1) of Subchapter M of Chapter I of Subtitle A of Title 32 of the Code of Federal Regulations, as amended on the date described in this subdivision.

(g) A person violating this section is guilty of a misdemeanor. In addition, a person violating any of the provisions of this section shall be liable for actual damages and reasonable attorney’s fees incurred by the injured party.

(h) The remedies provided for in this section are not intended to be exclusive but are in addition to the remedies provided for in other laws, including Sections 51 and 52 of the Civil Code.

(Amended by Stats. 2017, Ch. 591, Sec. 1.5. (AB 1710) Effective January 1, 2018.)

394.5.
  

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.

(Added by Stats. 1957, Ch. 469.)

395.
  

(a) Any public employee 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 is entitled to a temporary military leave of absence as provided by federal law while engaged in military duty ordered for purposes of active military training, inactive duty training, encampment, naval cruises, special exercises or like activity, providing that the period of ordered duty does not exceed 180 calendar days, including time involved in going to and returning from that duty.

(b) Notwithstanding subdivision (a), a local public agency may, but is not required to, provide paid military leave of absence for periods of inactive duty training.

(c) The employee has an absolute right to be restored to the former office or position and status formerly had by him or her in the same locality and in the same office, board, commission, agency, or institution of the public agency upon the termination of temporary military duty. If the office or position has been abolished or otherwise has ceased to exist during his or her absence, he or she shall be reinstated to a position of like seniority, status, and pay if a position exists, or if no position exists the employee shall have the same rights and privileges that he or she would have had if he or she had occupied the position when it ceased to exist and had not taken temporary military leave of absence.

(d) Any public employee who has been in the service of the public agency from which the leave is taken for a period of not less than one year immediately prior to the date upon which a temporary military leave of absence begins, shall receive the same vacation, sick leave, and holiday privileges and the same rights and privileges to promotion, continuance in office, employment, reappointment to office, or reemployment that the employee would have enjoyed had he or she not been absent therefrom; excepting that an uncompleted probationary period, if any, in the public agency, must be completed upon reinstatement as provided by law or rule of the agency. For the purposes of this section, in determining the one year of service in a public agency all service of the employee in recognized military service shall be counted as public agency service.

(e) If this section is in conflict with a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if the memorandum of understanding requires the expenditure of funds, it shall not become effective unless approved by the Legislature in the annual Budget Act.

(Amended by Stats. 2000, Ch. 928, Sec. 1. Effective January 1, 2001.)

395.01.
  

(a) Any public employee who is on temporary military leave of absence for military duty ordered for purposes of active military training, inactive duty training, encampment, naval cruises, special exercises, or like activity as such member, provided that the period of ordered duty does not exceed 180 calendar days including time involved in going to and returning from the duty, and who has been in the service of the public agency from which the leave is taken for a period of not less than one year immediately prior to the day on which the absence begins, is entitled to receive his or her salary or compensation as a public employee for the first 30 calendar days of any such absence. Pay for those purposes may not exceed 30 days in any one fiscal year. For the purposes of this section, in determining the one year of public agency service, all service of a public employee in the recognized military service shall be counted as public agency service.

(b) Notwithstanding subdivision (a), a local public agency may, but is not required to, pay an employee during a period of inactive duty training.

(c) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4, of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if those provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

(Amended by Stats. 2000, Ch. 928, Sec. 2. Effective January 1, 2001.)

395.02.
  

Every officer and employee of a public agency who is on military leave other than temporary military leave of absence who has been in the service of such public agency for a period of not less than one year immediately prior to the date on which the absence begins shall be entitled to receive his salary or compensation as such officer or employee for the first 30 calendar days while engaged in the performance of ordered military duty.

As used in this section only, the terms “officer” and “employee” mean an officer or employee who

(a) Is ordered into active military duty as a member of a reserve component of the armed forces of the United States;

(b) Is ordered into active federal military duty as a member of the National Guard or Naval Militia; or

(c) Is inducted, enlists, enters or is otherwise ordered or called into active duty as a member of the armed forces of the United States.

(Added by Stats. 1951, Ch. 1561.)

395.03.
  

No more than the pay for a period of 30 calendar days shall be allowed under the provisions of Section 395.01 or 395.02 for any one military leave of absence or during any one fiscal year, except as otherwise authorized by resolution of the legislative body of a public agency or as provided in a memorandum of understanding reached with an employee organization pursuant to Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code.

(Amended by Stats. 2000, Ch. 928, Sec. 3. Effective January 1, 2001.)

395.04.
  

During the time that as an officer or enlisted man or woman of the California National Guard, who is on full-time active duty in the military service of the state, and is engaged, with the approval of the Adjutant General, in the military service of the state in attendance at drills, camps, or special exercises, sponsored by federal authority or by the United States Department of Defense, as a member of the National Guard of the United States, he or she shall receive salary, pay, and compensation as provided in Sections 320 and 321.

(Amended by Stats. 2002, Ch. 465, Sec. 4. Effective January 1, 2003.)

395.05.
  

(a) Any public employee who is a member of the National Guard, shall be entitled to absent himself from his duties or service, without regard to the length of his public service, while engaged in the performance of ordered military or naval duty and while going to and returning from such duty, provided such duty is performed during such time as the Governor may have issued a proclamation of a state of extreme emergency or during such time as the National Guard may be on active duty in one or more of the situations described or included in Section 146 of this code provided such absence does not exceed the duration of such emergency. During the absence of such officer or employee while engaged in such military service during such emergency and while going to and returning from such duty, and for a period not to exceed 30 calendar days, he shall receive his salary or compensation as such officer or employee and shall not be subjected by any person directly or indirectly by reason of such absence to any loss or diminution of vacation or holiday privilege or be prejudiced by reason of such absence with reference to promotion or continuance in office, employment, reappointment to office, or reemployment.

(b) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

(Amended by Stats. 1979, Ch. 1072.)

395.06.
  

(a) A private employer shall consider a former employee who meets the requirements of subdivision (b) as having been on a leave of absence during any period of the former employee’s active service in the National Guard of any state, and is subject to both of the following:

(1) If the former position was a full-time position, and not a temporary position, the former employer shall restore the former employee to the former position or to 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 shall not discharge the former employee from the position without cause within one year after restoring him or her to the position.

(2) If the position was a part-time position, and not a temporary position, the former employer shall restore the former employee to the former position, or to a position of similar seniority, status, and pay, if any exists, and shall not discharge the former employee from the position without cause within one year after restoring him or her to the position.

(b) To be eligible for the employment protections specified in paragraph (1), the former employee shall meet all of the following requirements:

(1) He or she is an officer or enlisted member of the National Guard of any state.

(2) He or she was called to active duty by the Governor of the state where he or she serves in the National Guard or by the President of the United States.

(3) He or she received a certificate of satisfactory service in the National Guard of the state where he or she serves in the National Guard.

(4) He or she is still qualified to perform the duties of the position.

(5) If he or she left a full-time position, he or she made application for reemployment within 40 days of being released from service. If he or she left part-time employment, he or she made application for reemployment within five days of being released from service.

(c) If any employer fails or refuses to comply with this section, the superior court of the county in which the employer maintains a place of business may, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of this section, specifically require the employer to comply with this section and compensate the person for any loss of wages or benefits suffered by reason of the employer’s unlawful action. The court shall order a speedy hearing and shall advance it on the calendar. Upon application to the district attorney of the county in which the employer maintains a place of business by any person claiming to be entitled to the benefits of this section, the district attorney, if reasonably satisfied that the person is entitled to these benefits, shall appear and act as attorney for the person in the amicable adjustment of the claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof to specifically require the employer to comply with this section. No fees or court costs are required to be paid by the person applying for these benefits.

(d) Upon application to the city prosecutor of the city in which the employer maintains a place of business by any person claiming to be entitled to the benefits of this section, the city prosecutor, if reasonably satisfied that the person is entitled to these benefits, may appear and act as attorney for the person in the amicable adjustment of the claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof to specifically require the employer to comply with this section. No fees or court costs are required to be paid by the person applying for these benefits.

(Amended by Stats. 2015, Ch. 183, Sec. 1. (AB 583) Effective January 1, 2016.)

395.07.
  

(a) In addition to the benefits provided pursuant to Sections 395.01 and 395.02, any officer or employee of the legislative, executive, or judicial department of the state, who, as a member of the California National Guard or a United States Military Reserve organization, is called into active duty as a result of the Iraq-Kuwait crisis on or after August 2, 1990, shall have the benefits provided for in subdivision (b).

(b)  Any officer or employee to which subdivision (a) applies, while on active duty, shall, with respect to active duty served on or after August 2, 1990, receive from the state, for a period not to exceed 180 calendar days, as part of his or her compensation, both of the following:

(1) The difference between the amount of his or her military pay and allowances and the amount the officer or employee would have received as a state officer or employee, including any merit raises which would otherwise have been granted during the time the individual was on active duty.

(2) All benefits which he or she would have received had he or she not been called to active duty unless the benefits are prohibited or limited by vendor contracts.

(c) Any individual receiving compensation pursuant to subdivision (b) who does not return to state service within 60 days of being released from active duty shall have that compensation treated as a loan payable with interest at the rate earned on the Pooled Money Investment Account. This subdivision shall not apply to compensation received pursuant to Section 395.02.

(d) This section shall not apply to any active duty served voluntarily after the close of the Iraq-Kuwait crisis.

(Amended by Stats. 1991, Ch. 138, Sec. 2. Effective July 22, 1991.)

395.08.
  

(a) In addition to the benefits provided pursuant to Sections 395.01 and 395.02, any officer or employee of the legislative, executive, or judicial department of the state, who, as a member of the California National Guard or a United States Military Reserve organization, is called into active duty as a result of the Bosnia crisis on or after November 21, 1995, shall have the benefits provided for in subdivision (b).

(b) Any officer or employee to which subdivision (a) applies, while on active duty, shall, with respect to active duty served on or after November 21, 1995, as a result of the Bosnia crisis, receive from the state, for a period not to exceed 180 calendar days, as part of his or her compensation, both of the following:

(1) The difference between the amount of his or her military pay and allowances and the amount the officer or employee would have received as a state officer or employee, including any merit raises that would otherwise have been granted during the time the individual was on active duty.

(2) All benefits that he or she would have received had he or she not been called to active duty unless the benefits are prohibited or limited by vendor contracts.

(c) Any individual receiving compensation pursuant to subdivision (b) who does not return to state service within 60 days of being released from active duty shall have that compensation treated as a loan payable with interest at the rate earned on the Pooled Money Investment Account. This subdivision shall not apply to compensation received pursuant to Section 395.02.

(d) This section shall not apply to any active duty served voluntarily after the close of the Bosnia crisis.

(e) Benefits provided under paragraph (1) of subdivision (b) shall only be provided to an employee who was not eligible to participate in the federal Ready Reserve Mobilization Income Insurance Program (10 U.S.C. Sec. 12521 et seq.) or a successor federal program that, in the determination of the Director of Personnel Administration, is substantively similar to the federal Ready Reserve Mobilization Income Insurance Program. For an employee eligible to participate in the federal Ready Reserve Mobilization Income Insurance Program or a successor program, and whose monthly salary as a state employee was higher than the sum of his or her military pay and allowances and the maximum allowable benefit under the federal Ready Reserve Mobilization Income Insurance Program or a successor program, the employee shall receive the amount payable under paragraph (1) of subdivision (b), but that amount shall be reduced by the maximum allowable benefit under the federal Ready Reserve Mobilization Income Insurance Program or a successor program. For individuals who elected the federal Ready Reserve Mobilization Income Insurance Program the state shall reimburse for the cost of the insurance premium for the period of time on active duty, not to exceed 180 calendar days.

(Added by Stats. 1997, Ch. 780, Sec. 2. Effective October 8, 1997.)

395.1.
  

(a) Notwithstanding any other provision of law to the contrary, any officer or employee of the state not subject to Chapter 11 (commencing with Section 19770) of Part 2 of Division 5 of Title 2 of the Government Code, or any public officer, deputy, assistant, or employee of any city, county, city and county, school district, water district, irrigation district, or any other district, political corporation, political subdivision, or governmental agency thereof who, in time of war or national emergency as proclaimed by the President or Congress, or when any of the armed forces of the United States are serving outside of the United States or their territories pursuant to order or request of the United Nations, or while any national conscription act is in effect, leaves or has left his or her office or position prior to the end of the war, or the termination of the national emergency or during the effective period of any order or request of this type of the United Nations or prior to the expiration of the National Conscription Act, to join the armed forces of the United States and who does or did without unreasonable and unnecessary delay join the armed forces or, being a member of any reserve force or corps of any of the armed forces of the United States or of the militia of this state, is or was ordered to duty therewith by competent military authority and served or serves in compliance with those orders, shall have a right, if released, separated or discharged under conditions other than dishonorable, to return to and reenter upon the office or position within six months after the termination of his or her active service with the armed forces, but not later than six months after the end of the war or national emergency or military or police operations under the United Nations or after the Governor finds and proclaims that, for the purposes of this section, the war, national emergency, or United Nations military or police operation no longer exists, or after the expiration of the National Conscription Act, if the term for which he or she was elected or appointed has not ended during his or her absence; provided, that the right to return to and reenter upon the office or position shall not extend to or be granted to any officer or employee of the state not subject to Chapter 11 (commencing with Section 19770) of Part 2 of Division 5 of Title 2 of the Government Code, or any public officer, deputy, assistant, or employee of any city, county, city and county, school district, water district, irrigation district or any other district, political corporation, political subdivision or governmental agency thereof, who shall fail to return to and reenter upon his or her office or position within 12 months after the first date upon which he or she could terminate or could cause to have terminated his or her active service with the armed forces of the United States or of the militia of this state. He or she shall also have a right to return to and reenter upon the office or position during terminal leave from the armed forces and prior to discharge, separation or release therefrom.

(b) Upon return and reentry to the office or employment the officer or employee shall have all of the rights and privileges in, connected with, or arising out of the office or employment which he or she would have enjoyed if he or she had not been absent therefrom; provided, however, the officer or employee shall not be entitled to sick leave, vacation or salary for the period during which he or she was on leave from that governmental service and in the service of the armed forces of the United States.

If the office or position has been abolished or otherwise has ceased to exist during his or her absence, he or she shall be reinstated in a position of like seniority, status and pay if the position exists, or to a comparable vacant position for which he or she is qualified.

(c) Any officer or employee other than a probationer who is restored to his or her office or employment pursuant to this act shall not be discharged from that office or position without cause within one year after the restoration, and shall be entitled to participate in insurance or other benefits offered by the employing governmental agency pursuant to established rules and practices relating to those officers or employees on furlough or leave of absence in effect at the time the officer or employee left his or her office or position to join the armed forces of the United States.

(d) Notwithstanding any other provisions of this code, any enlisted person who was involuntarily ordered to active duty (other than for training) for a stated duration shall not lose any right or benefit conferred under this code if he or she voluntarily elects to complete the period of that duty.

(e) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

(Amended by Stats. 1994, Ch. 146, Sec. 161. Effective January 1, 1995.)

395.2.
  

Any employee of a board of school trustees or board of education in a position not requiring certification qualifications who enters the active military service of the United States of America or of the State of California, including active service in any uniformed auxiliary of, or to, any branch of such military service created or authorized as such auxiliary by the Congress of the United States of America or by the Legislature of the State of California, or in the full time paid service of the American Red Cross, during any period of National emergency declared by the President of the United States of America or during any war in which the United States of America is engaged, shall regain all rights to his position and shall be reinstated thereto upon his application at any time within six months of the termination of that service, but in any event within one year from the date of a treaty of peace terminating the hostilities in which the United States is now engaged. The provisions of this act shall apply to service in the Merchant Marine as that phrase is now defined in any Federal statute relating to reemployment rights of persons in service in the Merchant Marine.

(Amended by Stats. 1946, 1st Ex. Sess., Ch. 32.)

395.3.
  

In the event that any public officer or employee has resigned or resigns his or her office or employment to serve or to continue to serve in the Armed Forces of the United States or in the militia of this state, he or she shall have a right to return to and reenter the office or employment prior to the time at which his or her term of office or his or her employment would have ended if he or she had not resigned, on serving a written notice to that effect upon the authorized appointing power, or if there is no authorized appointing power, upon the officer or agency having power to fill a vacancy in the office or employment, within six months of the termination of his or her active service with the Armed Forces; provided, that the right to return and reenter upon the office or position shall not extend to or be granted to any public officer or employee, who shall fail to return to and reenter upon his or her office or position within 12 months after the first date upon which he or she could terminate or could cause to have terminated his or her active service with the Armed Forces of the United States or of the militia of this state.

As used in this section, “public officers and employees” includes all of the following:

(a) Members of the Senate and of the Assembly.

(b) Justices of the Supreme Court and the courts of appeal, judges of the superior courts, and all other judicial officers.

(c) All other state officers and employees not within Chapter 11 (commencing with Section 19770) of Part 2 of Division 5 of Title 2 of the Government Code, including all officers for whose selection and term of office provision is made in the California Constitution and laws of this state.

(d) All officers and employees of any county, city and county, city, township, district, political subdivision, authority, commission, board, or other public agency within this state.

The right of reentry into public office or employment provided for in this section shall include the right to be restored to the civil service status as the officer or employee would have if he or she had not so resigned; and no other person shall acquire civil service status in the same position so as to deprive the officer or employee of his or her right to restoration as provided for herein.

This section shall be retroactively applied to extend the right of reentry into public office or employment to public officers and employees who resigned prior to its effective date.

This section does not apply to any public officer or employee to whom the right to reenter public office or employment after service in the Armed Forces has been granted by any other provision of law.

If any provision of this section, or the application of this section to any person or circumstance, is held invalid, the remainder of this section, or the application of this section to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of the Government Code, the memorandum of understanding shall be controlling without further legislative action, except that if the provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

(Amended by Stats. 2003, Ch. 62, Sec. 208. Effective January 1, 2004.)

395.4.
  

Whenever the United States is engaged in war or whenever the Governor finds and proclaims that an emergency exists in preparing for the National defense, any employee or officer, other than an elected officer, of a county, city, political subdivision, school, irrigation, public district, or other local authority or public body whatsoever who enters the armed forces of the United States shall be entitled to a leave of absence for service with such armed forces for the duration of the war or until the Governor finds and proclaims that the emergency no longer exists, and for 90 days thereafter, or until 90 days after the termination of such service.

(Added by Stats. 1941, Ch. 82.)

395.5.
  

(a) The Military Department shall comply with the provisions of Section 4301 of Title 38 of the United States Code, the Uniformed Services Employment and Reemployment Rights Act (USERRA).

(b) For purposes of USERRA, Military Department personnel who are on state active duty and are deployed, mobilized, or otherwise subject to any federal active service under voluntary or involuntary conditions, shall be considered employees and provided the same federal reemployment protections and benefits given to other employees under USERRA.

(Added by Stats. 2006, Ch. 680, Sec. 2. Effective January 1, 2007.)

395.6.
  

(a) The Governor may appoint a mediator in his or her office to take complaints, regarding possible violations or other issues dealing with the Uniformed Service Employment and Reemployment Rights Act (38 U.S.C. Sec. 4301 et seq.), hereafter USERRA, and Section 395.06, and to resolve and coordinate the resolution of those complaints or issues, from state employees who satisfy both of the following:

(1) Are members of either of the following:

(A) The California National Guard.

(B) A reserve component of the Armed Forces of the United States.

(2) Encounter problems regaining their state position when they return from service in the California National Guard or from service in a reserve component of the United States Armed Forces.

(b) Each state agency and department may appoint a mediator to take complaints, regarding possible violations of USERRA and other issues relating to state pay, and to resolve and coordinate the resolution of those complaints with, if necessary, the assistance of the Governor-appointed ombudsman, from employees of that department or agency who are members of either the California National Guard or a reserve component of the Armed Forces of the United States.

(c) Mediators appointed under the provisions of subdivisions (a) and (b) shall become knowledgeable about USERRA law and, to the extent possible, work with the California Committee for Employer Support of the Guard and Reserve, a Department of Defense organization, and the California National Guard.

(Added by Stats. 2008, Ch. 642, Sec. 1. Effective January 1, 2009.)

395.8.
  

Any officer, elective or otherwise, who leaves or shall have left the service of any city in order to enter upon active service with the armed forces of the United States shall be reinstated and restored to his office upon his discharge or release from such active service with the armed forces; provided, such discharge or release is prior to the expiration of the term for which he has been elected or appointed.

The rights created by this section shall have no application to any officer who shall have been dishonorably discharged or released from such armed forces, or shall have been so mentally or physically disabled as to be incapable of performing the duties of his office or shall fail to present himself to the legislative body or other appointing authority of such city ready and willing to assume the duties of his office, within six months from the time of his discharge or release from active service with the armed forces.

The office from which such officer absents himself to enter upon active service with the armed forces shall not be considered to be vacant but the legislative body or other appointing authority, as the case may be, may appoint an officer to temporarily replace any such officer so absenting himself to enter upon active service with the armed forces. Such temporary officers shall have all of the powers and duties of the office to which he may be temporarily appointed and shall hold said office until the expiration of the term thereof or until the officer returns from service with the armed forces, whichever event first occurs.

(Amended by Stats. 1946, 1st Ex. Sess., Ch. 32.)

395.9.
  

Any public employee and any employee of a corporation, company, firm, or other person who is a member of the State Military Reserve is entitled to a temporary military leave of absence without pay while engaged in military duty for purposes of military training, drills, unit training assemblies, or similar inactive duty training for not to exceed 15 calendar days annually, including time involved in going to and returning from that duty.

(Added by Stats. 1987, Ch. 329, Sec. 1.)

395.10.
  

(a) Notwithstanding any other provision of law, a qualified employer shall allow a qualified employee to take up to 10 days of unpaid leave during a qualified leave period.

(b) For purposes of this section:

(1) “Period of military conflict” means either of the following:

(A) A period of war declared by the United States Congress.

(B) A period of deployment for which a member of a reserve component is ordered to active duty pursuant to either of the following:

(i) Sections 12301 and 12302 of Title 10 of the United States Code.

(ii) Title 32 of the United States Code.

(2) “Qualified employee” means a person who satisfies all of the following:

(A) Is the spouse of a qualified member.

(B) Performs service for hire for an employer for an average of 20 or more hours per week, but does not include an independent contractor.

(C) Provides the qualified employer with notice, within two business days of receiving official notice that the qualified member will be on leave from deployment, of his or her intention to take the leave provided for in subdivision (a).

(D) Submits written documentation to the qualified employer certifying that the qualified member will be on leave from deployment during the time the leave provided for in subdivision (a) is requested.

(3) “Qualified employer” includes any individual, corporation, company, firm, state, city, county, city and county, municipal corporation, district, public authority, or any other governmental subdivision, that employs 25 or more employees.

(4) “Qualified member” means a person who is any of the following:

(A) A member of the Armed Forces of the United States who has been deployed during a period of military conflict to an area designated as a combat theater or combat zone by the President of the United States.

(B) A member of the National Guard who has been deployed during a period of military conflict.

(C) A member of the Reserves who has been deployed during a period of military conflict.

(5) “Qualified leave period” means the period during which the qualified member is on leave from deployment during a period of military conflict.

(c) A qualified employer shall not retaliate against a qualified employee for requesting or taking the leave provided for in this section.

(d) The leave provided for in this section shall not affect or prevent a qualified employer from allowing a qualified employee to take a leave that the qualified employee is otherwise entitled to take.

(e) This section shall not affect a qualified employee’s rights with respect to any other employee benefit provided for in other laws.

(Added by Stats. 2007, Ch. 361, Sec. 1. Effective October 9, 2007.)

396.
  

The commanding officer of any portion of the militia parading or performing any military duty in any street or highway may require persons in such street or highway to yield the right of way to such militia, except that the carriage of the United States mail, the legitimate functions of the police, and the progress and operations of hospital ambulances, fire engines, and fire departments and apparatus shall not be interfered with thereby.

Any person who hinders, delays, or obstructs any portion of the militia parading or performing any military duty, or who attempts so to do, is guilty of a misdemeanor.

(Enacted by Stats. 1935, Ch. 389.)

397.
  

When an emergency has been declared to exist by the Governor and during the continuance thereof, any person belonging to the military or naval forces of the State or of the United States shall, together with his conveyance, personal baggage, and the military property of the State or of the United States in his charge, be allowed to pass free through all tollgates and over all toll bridges and all ferries, if he presents an order for duty in the military or naval service of the State or of the United States. The provisions of this section do not apply to any tollgate, toll bridge or ferry owned or operated by any private individual, corporation or utility, or owned or operated by any municipal corporation or bridge and highway district.

(Amended by Stats. 1945, Ch. 791.)

398.
  

Any person who trespasses upon any campground, armory, airport, or other place devoted to military duty, or who in any way or manner interrupts or molests the orderly discharge of military duty, or who disturbs or prevents the passage of troops going to or returning from any duty is guilty of a misdemeanor and may be placed under arrest by or at the direction of the commanding officer of the troops or of the place concerned. The Adjutant General may cause any place to be declared “off limits” to members of the National Guard if necessary to protect the health, safety, morals or general welfare of such members during such times as the National Guard may be on active duty or in attendance at an encampment, maneuvers or extended exercise.

(Amended by Stats. 1949, Ch. 536.)

399.
  

(a) (1) The Secretary of the California Department of Veterans Affairs, or his or her designees, shall assist any eligible member or veteran who returns or has returned to this state in obtaining a best practice health screening test for exposure to depleted uranium. The screening should consist of a bioassay procedure capable of detecting depleted uranium at low levels and discriminating between different uranium isotopes. State funds shall not be used to pay for the tests or any other federal treatment services.

(2) The eligible member or veteran must return or have returned to this state after service in an area where depleted uranium was used or that was designated as a combat zone by the President of the United States after 1990. The eligible member or veteran shall either be assigned a risk level I, II, or III for depleted uranium exposure by his or her branch of service, be referred by a military physician, or have reason to believe that he or she was exposed to depleted uranium during his or her service.

(b) (1) In order to effectively provide the assistance required by subdivision (a), the Secretary of the California Department of Veterans Affairs, or his or her designees, shall develop and implement a plan for outreach to eligible members and veterans who have returned from combat areas where depleted uranium was used.

(2) The outreach plan shall provide information to eligible members and veterans concerning their potential exposure to depleted uranium, the possible hazards associated with exposure, and the right to federal depleted uranium screening services.

(c) For purposes of this section, all of the following apply:

(1) “Eligible member” means a member who served in the Persian Gulf War, as defined in Section 101 of Title 38 of the United States Code, in an area designated as a combat zone by the President of United States during Operation Enduring Freedom or Operation Iraqi Freedom, or in any other combat theater where depleted uranium was used.

(2) “Member” or “member of the Armed Forces” means a member of the Armed Forces of the United States, including the California National Guard, who is a resident of this state.

(3) “Military physician” means a provider who is under contract with the United States Department of Defense to provide physician services to members of the Armed Forces.

(Added by Stats. 2006, Ch. 686, Sec. 3. Effective January 1, 2007.)

399.5.
  

(a) (1) The Secretary of the California Department of Veterans Affairs, or his or her designees, shall assist any eligible member or veteran who returns or has returned to this state in obtaining an appropriate health screening test for traumatic brain injury and post-traumatic stress disorder.

(2) The eligible member or veteran must return or have returned to this state after service.

(b) (1) In order to effectively provide the assistance required by subdivision (a), the Secretary of the California Department of Veterans Affairs, or his or her designees, shall develop and implement a plan for outreach to eligible members and veterans who have returned from combat. The Adjutant General, or his or her designee, shall also develop and implement a plan for outreach to eligible members of the California National Guard who have returned from combat and remain on duty in order to effectively provide the service required by subdivision (a).

(2) Each outreach plan shall provide information to eligible members and veterans concerning traumatic brain injury and post-traumatic stress disorder, the possible impacts associated with traumatic brain injury and post-traumatic stress disorder, and the right to screening services.

(c) For purposes of this section, both of the following apply:

(1) “Eligible member” means a member who served under Title 10 of the United States Code as designated by Executive Orders Nos. 12744 and 13239 of the President of the United States.

(2) “Member” or “member of the Armed Forces” means a member of the Armed Forces of the United States, including the California National Guard, who is a resident of this state.

(Added by Stats. 2008, Ch. 593, Sec. 1. Effective January 1, 2009.)

MVCMilitary and Veterans Code - MVC