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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
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.
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
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
The amendment is as follows:
Strike all after the enacting clause and insert the
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
(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
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.
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.
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.
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.
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
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
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
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
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.
Douglas W. Elmendorf,
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.
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
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
* * * * * * *
SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;
* * * * * * *
Sec. 4312. Reemployment rights of persons who serve in the uniformed
(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
(1) * * *
* * * * * * *
(4) performed by a member of a uniformed service who
(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.
* * * * * * *