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111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-450

======================================================================



 
            NATIONAL GUARD EMPLOYMENT PROTECTION ACT OF 2010

                                _______
                                

 March 22, 2010.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Filner, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1879]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 1879) to amend title 38, United States Code, to 
provide for employment and reemployment rights for certain 
individuals ordered to full-time National Guard duty, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     3
Subcommittee Consideration.......................................     3
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
Statement of General Performance Goals and Objectives............     4
New Budget Authority, Entitlement Authority, and Tax Expenditures     4
Earmarks and Tax and Tariff Benefits.............................     4
Committee Cost Estimate..........................................     4
Congressional Budget Office Cost Estimate........................     5
Federal Mandates Statement.......................................     6
Advisory Committee Statement.....................................     6
Constitutional Authority Statement...............................     6
Applicability to Legislative Branch..............................     6
Section-by-Section Analysis of the Legislation...................     6
Changes in Existing Law Made by the Bill, as Reported............     6

                               Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``National Guard Employment Protection 
Act of 2010''.

SEC. 2. REEMPLOYMENT RIGHTS FOLLOWING CERTAIN NATIONAL GUARD DUTY.

  (a) Reemployment Rights.--Section 4312(c)(4) of title 38, United 
States Code, is amended--
          (1) by striking ``or'' at the end of subparagraph (D);
          (2) by striking the period at the end of subparagraph (E) and 
        inserting ``; or''; and
          (3) by adding at the end the following new subparagraph:
                  ``(F) ordered to full-time National Guard duty under 
                the provisions of section 502(f) of title 32 when the 
                period of duty is expressly designated in writing by 
                the Secretary of Defense as covered by this 
                subparagraph.''.
  (b) Effective Date.--Subparagraph (F) of section 4312(c)(4) of title 
38, United States Code, as added by subsection (a), shall apply with 
respect to an individual ordered to full-time National Guard duty under 
section 502(f) of title 32, United States Code, on or after September 
11, 2001, and shall entitle such individual to rights and benefits 
under chapter 43 of title 38 of such Code on or after that date.

                          Purpose and Summary

    H.R. 1879 was introduced on April 2, 2009, by 
Representative Mike Coffman of Colorado. H.R. 1879, as amended, 
would add certain types of active duty performed by members of 
the National Guard to the protections afforded by the Uniformed 
Services Employment and Reemployment Rights Act (USERRA).

                  Background and Need for Legislation

    The September 11, 2001, attacks on New York City and 
Washington, DC, as well as catastrophic natural disasters such 
as Hurricane Katrina in the United States and in countries like 
Haiti has resulted in extended periods of active duty performed 
by members of the National Guard. As a result, some members of 
the National Guard are approaching the five-year limit on 
active duty that is exempted under the USERRA.
    The purposes of USERRA are clearly stated in section 4301 
of title 38, United States Code. Section 4301 states that:
    (a) the purposes of this chapter [USERRA] are--
          (1) to encourage noncareer service in the uniformed 
        services by eliminating or minimizing the disadvantages 
        to civilian careers and employment which can result 
        from such service;
          (2) to minimize the disruption to the lives of 
        persons performing service in the uniformed services as 
        well as to their employers, their fellow employees, and 
        their communities, by providing for the prompt 
        reemployment of such persons upon their completion of 
        such service; and
          (3) to prohibit discrimination against persons 
        because of their service in the uniformed service.
    (b) It is the sense of Congress that the Federal Government 
should be a model employer in carrying out the provisions of 
this chapter.
    USERRA was first designed in a time when National Guard 
forces were intended to function as a strategic reserve. 
However, national defense strategy has changed and now regards 
the National Guard as operational forces. As such, those forces 
are now called upon to perform not only the traditional State-
based duties such as disaster relief, but also extended active 
duty under both title 10 and title 32, United States Code.
    In accordance with the purposes above, section 4312(c) of 
title 38, United States Code, places a limit of five-years of 
active duty that may be performed without losing the 
protections of USERRA. However, in recognition of the change in 
national strategy several types of active duty, such as weekend 
drills, annual active duty, and exercises are exempted from the 
five-year limit. Since September 11, 2001, the U.S. Department 
of Defense has relied heavily on activating various members of 
the National Guard for multiple periods of active duty under 
section 502(f) of title 32, United States Code. Such duty is 
not included among the exemptions listed under 4312(c) of title 
38, United States Code.
    While the basic tenets of USERRA remain, the addition of 
active duty performed under section 502(f) is appropriate and 
within the spirit of the purposes of USERRA. To clarify the 
intent of the legislation, section 2 of the bill was amended to 
limit the exemption to active duty under section 502(f) 
performed since September 11, 2001, and specifically designated 
in writing by the Secretary of Defense.

                                Hearings

    On May 21, 2009, the Subcommittee on Economic Opportunity 
conducted a legislative hearing on various bills introduced 
during the 111th Congress, including H.R. 1879. The following 
witnesses testified: The Honorable Mike Coffman of Colorado; 
Mr. Richard Daley, Associate Legislation Director, Paralyzed 
Veterans of America; Mr. John L. Wilson, Associate National 
Legislative Director, Disabled American Veterans; Mr. Mark 
Seavey, Assistant Director, National Legislative Commission, 
The American Legion; Mr. Raymond C. Kelley, National 
Legislative Director, AMVETS; Mr. Wade J. Spann, Alumni, 
Wounded Warrior Project; Mr. Keith M. Wilson, Director, Office 
of Education Service, Veterans Benefits Administration, U.S. 
Department of Veterans Affairs; accompanied by Mr. F. John 
Brizzi, Jr., Deputy Assistant General Counsel, U.S. Department 
of Veterans Affairs; and, Mr. John M. McWilliam, Deputy 
Assistant Secretary, Veterans' Employment and Training Service, 
U.S. Department of Labor. The Honorable Bob Filner of 
California submitted a statement for the record.

                       Subcommittee Consideration

    On March 4, 2010, the Subcommittee on Economic Opportunity 
met in an open markup session and ordered H.R. 1879, as 
amended, favorably forwarded to the full Committee by voice 
vote. During consideration of the bill the following amendment 
in the nature of a substitute was considered:
        An amendment in the nature of a substitute offered by 
        Mr. Teague of New Mexico to clarify that National Guard 
        members would only qualify if they receive orders of 
        duty indicating that such duty qualifies for the 
        exemption. The amendment also clarifies that a 
        particular section 502(f) assignment is exempt from the 
        five-year USERRA limitation of section 4312(c)(4)(F) of 
        title 38, United States Code, only if the Secretary of 
        Defense expressly designates in writing on the orders 
        to duty that such duty qualifies.

                        Committee Consideration

    On March 10, 2010, the full Committee met in an open markup 
session. A quorum being present, the Committee ordered H.R. 
1879, as amended, reported favorably to the House of 
Representatives, by voice vote.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report the legislation and amendments thereto. 
There were no record votes taken on amendments or in connection 
with ordering H.R. 1879, as amended, reported to the House. A 
motion by Mr. Brown of South Carolina to order H.R. 1879, as 
amended, reported favorably to the House of Representatives was 
agreed to by voice vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

                  Earmarks and Tax and Tariff Benefits

    H.R. 1879 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate on H.R. 
1879 prepared by the Director of the Congressional Budget 
Office pursuant to section 402 of the Congressional Budget Act 
of 1974.

               Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 1879 provided by the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 16, 2010.
Hon. Bob Filner,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1879, the National 
Guard Employment Protection Act of 2010.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dawn Regan.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.
    Enclosure.

H.R. 1879--National Guard Employment Protection Act of 2010

    The Uniformed Services Employment and Reemployment Rights 
Act of 1994 (USERRA) requires employers (both governmental and 
private) to provide certain employment benefits, including 
guaranteed reemployment, to employees who miss work because of 
their military service. Under USERRA, those protections are 
guaranteed for up to five years of cumulative absence from a 
job due to service in the military. However, some 
servicemembers have their jobs protected for longer than five 
years, because some specific types of military duty do not 
count against the period of guaranteed USERRA protection.
    H.R. 1879 would amend current law to add a type of National 
Guard duty to the list of duties exempted from counting against 
the limited period of USERRA protection. CBO estimates that 
relatively few National Guard members, if any, who are current 
or previous federal employees, would receive additional job 
protection or other benefits because of this new exemption. 
Thus, CBO estimates that enacting this bill would have no 
impact on the federal budget.
    Enacting H.R. 1879 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures would not apply.
    Under current law, state, local, and tribal governments as 
well as private-sector employers must reemploy military 
servicemem-bers as required by USERRA. Such a requirement is an 
intergovernmental and private-sector mandate as defined in the 
Unfunded Mandates Reform Act (UMRA). By expanding the 
individuals protected under USERRA, state, local, and tribal 
governments as well as private-sector employers would face 
additional costs to comply with these reemployment protections. 
Based on annual reporting under USERRA and on discussions with 
agency officials, CBO estimates that few additional 
servicemembers would qualify for reemployment. Thus the cost of 
complying with the mandates would fall well below the annual 
thresholds in UMRA for both intergovernmental and private-
sector mandates ($70 million and $141 million in 2010, 
respectively, adjusted annually for inflation).
    The CBO staff contact for this estimate is Dawn Regan. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 1879 prepared by the Director of the 
Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act would be created by H.R. 
1879.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for H.R. 1879 is provided by Article 
I, section 8 of the Constitution of the United States.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section provides the short title of H.R. 1879, as 
amended, as the ``National Guard Employment Protection Act of 
2009.''

Section 2. Reemployment rights following certain National Guard duty

    This section would amend section 4312(c)(4) of title 38, 
United States Code, to add full time National Guard active duty 
under section 502(f) of title 32, United States Code, when 
designated in writing by the Secretary of Defense, to the list 
of active duty exempt from the five-year limit.
    This section would also provide the effective date for duty 
exempted as September 11, 2001.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                      TITLE 38, UNITED STATES CODE




           *       *       *       *       *       *       *
PART III--READJUSTMENT AND RELATED BENEFITS

           *       *       *       *       *       *       *


   CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
UNIFORMED SERVICES

           *       *       *       *       *       *       *



  SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; 
PROHIBITIONS

           *       *       *       *       *       *       *



Sec. 4312. Reemployment rights of persons who serve in the uniformed 
                    services

  (a) * * *

           *       *       *       *       *       *       *

  (c) Subsection (a) shall apply to a person who is absent from 
a position of employment by reason of service in the uniformed 
services if such person's cumulative period of service in the 
uniformed services, with respect to the employer relationship 
for which a person seeks reemployment, does not exceed five 
years, except that any such period of service shall not include 
any service--
          (1) * * *

           *       *       *       *       *       *       *

          (4) performed by a member of a uniformed service who 
        is--
                  (A) * * *

           *       *       *       *       *       *       *

                  (D) ordered to active duty in support, as 
                determined by the Secretary concerned, of a 
                critical mission or requirement of the 
                uniformed services; [or]
                  (E) called into Federal service as a member 
                of the National Guard under chapter 15 of title 
                10 or under section 12406 of title 10[.]; or
                  (F) ordered to full-time National Guard duty 
                under the provisions of section 502(f) of title 
                32 when the period of duty is expressly 
                designated in writing by the Secretary of 
                Defense as covered by this subparagraph.

           *       *       *       *       *       *       *