C oncord AND COUNCIL/AGENCY BOARD

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1 AGENDA ITEM NO. 4.a KL.rVI(I I V IVIA Y VK/KL.I)E V ELVr1V1E1V I AlTE1V 1. Y UtIA1K C oncord AND COUNCIL/AGENCY BOARD TO THE HONORABLE MAYOR/REDEVELOPMENT AGENCY CHAIR AND CITY COUNCIL/AGENCY BOARD: DATE: March 2, 2009 SUBJECT: APPROVE RESOLUTION AMENDING CITY POLICY (MILITARY LEAVE) PROVIDING SUPPLEMENTAL COMPENSATION BEYOND THE INITIAL PERIOD OF PAID MILITARY LEAVE ELIGIBILITY THROUGH THE PERIOD OF INVOLUNTARY DEPLOYMENT Report in Brief On February 26, 2002, the Council approved Policy & Procedure 37-22, Military Leave, in compliance with state and federal law regarding the provision of military leaves of absence and benefits. Under this policy, employees of the City of Concord are entitled to benefits for military service in accordance with the California Military and Veterans Code (section 389 et. seq.) and the Federal Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA, 38 U.S.C. sections 4301 et. seq.). The policy does not provide for compensation beyond the initial thirty-day period of military leave. Staff recommends the City Council adopt Resolution No , modifying the current Policy & Procedure 37-22, and authorizing supplemental compensation based upon calculations against the employee's base monthly pay to minimize the impact an involuntary call to duty has on the employee and their dependents due to the loss of full-time employment income and benefits for extended periods of deployment. Background Since 2005, there have been four City employees who have been ordered to either temporary or active military duty. With the continuation of the anti-terrorist and homeland security efforts, the involuntary activation of military reservists has been more extensive and for longer periods than originally anticipated when military leave benefits were first instituted and Policy & Procedure was approved. Over the past five years, the trend has been for public agencies to provide some form of supplemental compensation over and above what is required by California and federal law. Current Temporary and Active military leave benefits for eligible employees under the City' s Military Leave Policy include: Base salary for first thirty (30) days of military leave during a fiscal year Voluntary substitution of accrued vacation and/or compensatory time for unpaid military leave Re-employment/reinstatement rights

2 APPROVE RESOLUTION AMENDING CITY POLICY (MILITARY LEAVE) PROVIDING PAID MILITARY LEAVE BEYOND THE INITIAL PERIOD OF ELIGIBILITY THROUGH THE PERIOD OF INVOLUNTARY DEPLOYMENT February 23, 2009 Page 2 Group health and dental plan coverage for first thirty (30) days of military leave Continued group health and dental plan coverage under COBRA while on unpaid military leave Staff recommends providing supplemental compensation in the amount of the difference between an employee's base pay and the employee's active military duty pay for those who are involuntarily ordered to active duty, and continued applicable group health, dental and vision coverage at the normal contribution levels for the duration of the employee's involuntary active duty deployment. Qualifying City employees who, as a member of the California National Guard or a United States military reserve organization, are involuntarily ordered to active duty by authority of the President of the United States in a time of war or other military conflict and whose deployment orders will extend beyond thirty (30) days in a fiscal year would be considered eligible for the recommend supplemental pay and benefit continuation. Discussion State and Federal Law Under California law, the City is required to and currently does pay to qualifying employees with one year of city employment, their full salary and benefits for the first thirty (30) days of their military service in each fiscal year. Under federal law, the City must continue employee health benefit coverage for up to one year while the employee is on military leave. Current City Policy During the initial thirty (30) day period of military leave, an employee is considered to be in a fully paid status. However, once an employee exhausts the initial thirty (30) day period of active military leave, the employee moves into an unpaid military leave status unless accrued vacation leave and/or compensatory time are used. Employees remain on the City's group health and dental plans and continue to accrue vacation and sick leave as long as they maintain a paid status for a minimum of 56 hours in a bi-weekly pay period. If an employee remains on active military duty leave beyond the limit of City provided health benefit coverage, City policy provides employees the option to elect continuing health and dental benefit coverage at their cost under COBRA. Upon return to duty, City provided health benefit coverage is reinstated with no waiting period. Continuation of CalPERS Retirement Under both federal and state law, service credit for retirement benefits is granted for the duration of military leave. The California Public Employees' Retirement System (Ca1PERS) has determined that compensation provided as part of military leave supplemental compensation is considered non-reportable income to CalPERS. Therefore, no benefit contributions are made on the supplemental compensation during military leave. Once the employee returns from active duty military leave, the employee is required to submit the appropriate documentation to CalPERS and CalPERS will then make the appropriate service credit 2

3 APPROVE RESOLUTION AMENDING CITY POLICY (MILITARY LEAVE) PROVIDING PAID MILITARY LEAVE BEYOND THE INITIAL PERIOD OF ELIGIBILITY THROUGH THE PERIOD OF INVOLUNTARY DEPLOYMENT February 23, 2009 Page 3 adjustment at no cost to the employee. Ca1PERS will make a determination during subsequent actuarial valuations if an adjustment is required in the employer's retirement contribution rate. Supplemental Compensation and Benefit Continuation If approved based upon the recommendation, eligible City employees will receive the difference in pay in an amount equal to their normal monthly City pay rate less their monthly military pay and continued applicable group health, dental and vision coverage at the normal City contribution levels for the duration of the employee's involuntary active duty deployment. For sworn employees, pay for employees who qualify to receive the Master Officer/Sergeant designation and pay pursuant to the police professionalization program are included in the normal monthly City base pay rate. An employee's military pay is based upon the employee's military rank, years of military service, housing allowance, hazardous duty pay, flight pay, etc. Employees eligible for the recommended supplemental compensation would be required to furnish appropriate documentation of their monthly military compensation on a periodic basis to ensure proper calculation of the supplemental pay. Upon approval of the proposed recommendation, employees who are eligible to receive supplemental compensation while on extended military leave would not accrue any further paid leave. Leave balances for employees receiving supplementary compensation would be frozen until the employee returns to City employment and resumes a fully paid status. The Human Resources Department, in collaboration with the Finance Department, will serve as the City's military leave coordinator and is available to assist City employees who are called to active duty with any questions or issues they may have regarding military leave and/or supplemental compensation. Approval and adoption of the recommended resolution and revised military leave policy is recommended in order to mitigate the potential economic hardship for eligible employees on extended involuntary active duty. Fiscal Impact The financial impact of the recommended supplemental compensation provisions depends upon the number of employees who are ordered to involuntary active military duty, their military and City compensation and the duration of their deployment. There is currently one sworn employee who has been involuntarily deployed and who has exhausted the thirty (30) day paid military leave benefit. The cost associated with approving this resolution in the instant case would be the difference in pay in an amount equal to the employee's normal monthly City pay rate less his monthly military pay and the City's normal contribution to the applicable health, dental and vision benefit premiums for the duration of his involuntary deployment, retroactive to October 1, All City costs associated with the recommended supplemental compensation and benefit continuation will be borne by the employee ' s department. 3

4 APPROVE RESOLUTION AMENDING CITY POLICY (MILITARY LEAVE) PROVIDING PAID MILITARY LEAVE BEYOND THE INITIAL PERIOD OF ELIGIBILITY THROUGH THE PERIOD OF INVOLUNTARY DEPLOYMENT February 23, 2009 Page 4 Public Contact Council agenda was appropriately posted and the recommended supplemental compensation provisions to the City's Military Leave Policy have been discussed with the various employee representation units. Recommendation for Action Staff recommends that the City Council approve and execute the following effective October 1, 2008: 1. Adopt Resolution No providing supplemental compensation and benefits for those employees who are involuntarily called to active duty for durations exceeding the thirty (30) days of military leave; and 2. Approve revisions to Policy and Procedure 37-22, Military Leave, detailing the terms and conditions of recommended City supplemental compensation and benefits. Daniell.Keeri Prepared by: Kathy Ito CityManager Human Resources Director Dan.Keen@ci. concord. ca.us Kathy.Ito@ci. concord. ca.us Attachments #1: Resolution No Attachment #2: Revised Military Leave Policy & Procedure

5 Attachment BEFORE THE CITY COUNCIL OF THE CITY OF CONCORD COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA A RESOLUTION OF THE CITY OF CONCORD AMENDING POLICY & PROCEDURE NO , MILITARY LEAVE, TO PROVIDE SUPPLEMENTAL MILITARY LEAVE COMPENSATION Resolution WHEREAS, the City's current Military Leave policy complies with the California Military and Veterans Code, section 389 et seq., and the Federal Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. Sections 4301, et seq., in that it provides paid military leave for a maximum of thirty calendar days per fiscal year to employees who have been with the City for at least one year and how are ordered to active military duty; and WHEREAS, the City's current Military Leave policy provides continued City paid group health care coverage while the employee remains in a paid leave status; and WHEREAS, there are currently employees of the City who are armed forces, naval military or National Guard reservists who may be called to mandatory involuntary active duty where such orders may require extended military leave beyond thirty days; and WHEREAS, any such employee called to such mandatory active duty and their dependents would suffer an economic hardship as a result of loss of employment income and benefits from the City; and WHEREAS, the City Council believes it is in the public interest to ensure that loss of income for employees called to involuntary active duty be minimized to the extent possible; WHEREAS, City employees who have been called to active military duty, as defined in paragraph 3, above, after exhausting salary or compensation to which they are entitled under current City policy and the California Military and Veterans Code, shall be entitled to salary augmentation in the form of supplemental pay not to exceed one hundred percent (100%) of their base City pay in combination with their military pay and continued applicable group health, dental and vision coverage at the normal City contribution levels for the duration of the involuntary active deployment; // Res. No

6 Attachment NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CONCORD DOES RESOLVE AS FOLLOWS: Section 1. Pursuant to the provisions of this resolution supplemental compensation and health benefit continuation is extended to qualifying City employees who, as a member of the California National Guard or a United States military reserve organization, are involuntarily ordered to active duty by authority of the President of the United States in a time or war or other military conflict and whose deployment orders will extend beyond thirty (30) days in a fiscal year. Section 2. This resolution shall become effective retroactively to October 1, PASSED AND ADOPTED by the City Council of the City of Concord on March 2, 2009, by the following vote: AYES: Councilmembers - NOES: Councilmembers - ABSTAIN: Councilmembers - ABSENT: Councilmembers I HEREBY CERTIFY that the foregoing Resolution No. 09-xx was duly and regularly adopted at a regular joint meeting of the City Council and the Redevelopment Agency of the City of Concord on March 2, APPROVED AS TO FORM: Craig Labadie City Attorney Mary Rae Lehman City Clerk Attachment : Amended Policy & Procedure 37-22, Military Leave Res. No

7 Concord POLICY & PROCEDURE PROPOSED CITY OF CONCORD REDLINE/STRIKEOUT MILITARY LEAVE Attachment 2 Number: Authority: Council Motion Effective: Revised: Reviewed: 2008 Initiating Dept.: HR 1. PURPOSE It is the policy of the City of Concord to provide appropriate military leaves of absence, benefits and reinstatement privileges for eligible employees who are inducted, enlist, enter or are ordered or called into active military duty pursuant to state and federal law, subject to the procedures and limitations set forth in this Policy & Procedure. 2. DEFINITIONS 2.1 Eligible Employee means those employees who have been in the service of the City (or public service) for a period of not less than one year immediately prior to the date upon which a temporary military leave of absence begins. 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 (California Military and Veterans Code, Sect ) Day Period means the first 30 calendar days of any military leave of absence. Military leave begins on the first day of ordered duty and ends on the last day of ordered duty and include workdays, nonworkdays, holidays, and reasonable travel time. 2.3 Salary/Compensation means pay that is equal to the regular hourly wage for the days and hours the employee is normally scheduled. Pay will not exceed 80 hours per pay period. 2.4 Annual Training means engaged in military duty ordered for purposes of military training, where the period of ordered duty is no more than 17 calendar days annually including time involved in going to and returning from such duty. 2.5 Inactive Duty Training (drill/weekend duty) means the recurring requirement, usually 2 days per month, to perform inactive duty training (drill). Periods of military leave of absence to perform inactive duty training are not eligible for paid military leave. 2.6 Official Orders for Active or Reserve Duty means all written or verbal orders. Official Orders are considered valid when issued by competent military authority. 3. ELIGIBILITY To be eligible for military leave, an employee must be a member of the "uniformed services," United States Army, Navy, Air Force, Marines, Coast Guard, National Guard, Reserves or Public Health Service, or any other category of persons designated by the President in time of war or emergency (38 U.S.C. Section 4303 (13 & 16)). 4. QUALIFYING EVENTS 4.1 Temporary military duty ordered for purposes of active military training, encampment, naval cruises, special exercises or like activity for an employee serving as a member of a uniformed service (California Military and Veterans Code, Sect ). 4.2 Active military duty when an employee (California Military and Veterans Code, Sect ): 4.21 is ordered into active military duty as a member of a reserve component of the armed forces of the United States. 1

8 POLICY & PROCEDURE No is ordered into active federal military duty as a member of the National Guard or Naval Militia is inducted, enlists, enters or is otherwise ordered or called into active duty as a member of the armed forces of the United States. 5. AMOUNT OF LEAVE ALLOWABLE 5.1 Military Training. An eligible employee is entitled to a military leave of absence while engaged in temporary military duty training as a member of a reserve unit or a National Guard unit, provided that the period of ordered temporary duty does not exceed 180 calendar days, including time involved in going to and returning from that duty (California Military and Veterans Code, Sect (a)). 5.2 Maximum limit is 5-year cumulative total of voluntary active duty military service not in support of war, national emergency, or certain operational missions (USERRA, Sect.4312 (c)). 6. PAID MILITARY LEAVE 6.1 An eligible employee is entitled to receive his or her base salary for the first 30 calendar days of military leave of absence. Pay for this purpose may not exceed 30 calendar days in any one fiscal year (California Military and Veterans Code, Sect ). 6.2 No more than the pay for a period of 30 calendar days shall be allowed under sections 4.1 and 4.2 for any one military leave of absence or during any one fiscal year. (California Military and Veterans Code, Sect ). 6.3 Employees on military leave may substitute their accrued vacation and/or compensatory time for unpaid military leave. 7. SUPPLEMENTAL COMPENSATION 7.1 By resolution, City Council of the City of Concord has authorized additional paid military leave for military reservists called to active duty beyond the thirty (30) days of leave as specified in this policy. This resolution is intended to provide for the differential between the employee's base compensation and active military dutpensation and shall be referred to for purposes of this policpplemental compensation Pay differential for sworn employees who have achieved the Master Officer and /or Mas- ter Sergeant designation is included in the employee's base pay for purposes of calculating milito leave su PE lemental com ensation. 7.2 Employees with at least one year of City service who are involuntarily ordered to active duty by authority of the President in a time of war or other military conflict who are required to serve related to terrorist attacks or im provided: ending or actual armed conflict. the followin g supij lemental com ensation will be 7.21 After serving the first 30 days of paid military leave in a fiscal year. employees' active milita duty compensation shall be su Vp lemented b the difference between the employee' s base sala and most current active military duty com ensation In calculating supplemental compensation, the City will take into consideration all extra military pay including. but not limited to. dependent allowance. housing allowance. hazardous duty and flight PA Pay differential for sworn employees who participate in the Police Professionalization Program shall be included in the employee ' s base ^y for purposes of calculating military leave supplemental cmensation. 2

9 POLICY & PROCEDURE No Supplemental compensation will be provided for the duration of the employee's active military deployment pursuant to the most recent active duty orders once the initial thirty-day paid military leave has been exhausted. 7.3 Employees who may qualify for supplemental compensation will be required to furnish sufficient documentation of the employee ' s military orders and documentation of current active military duty compensation. Failure to provide the required documentation will render the employee ineligible for supij lemental compensation The employee will be required to submit a copy of their military pay stub on a quarterly basis to ensure that their supplemental compensation is based on the most current active military duty pay. 7.4 The Human Resources Department functions as the City ' s military leave administrator and is authorized to make determinations regarding the provisions of paid military leave and whether an employee ' s active duty assignment qualifies for supplemental compensation as provided for in this poli 8. REQUESTING AND SCHEDULING LEAVE Employees are expected to be sensitive to employer scheduling requirements when providing notification and when submitting application to the unit for orders. When possible, an employee should submit requests for orders during calendar periods outside of peak operational seasons and not during the most popular vacation cycles. 8.1 Advance Notice. Written or oral notification must be given prior to going on duty, unless precluded by military necessity. Employees are highly encouraged to notify the supervisor of any "window" of anticipated military activity, when application for orders is made, or if notified of possible involuntary recall (USERRA, Sect (a) (1)). 8.2 Official Orders. Employees shall provide a copy of orders, the annual drill schedule, or other type of documentation as soon as available and, if possible, before commencement of military duty. Official orders are required for periods of military leave of absence exceeding 30 days. 9. RE-EMPLOYMENT RIGHTS 9.1 Any employee whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits if 9.11 the employee (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to the City; 9.12 the cumulative length of the absence and of all previous absences from a position of employment with the City by reason of service in the uniformed services does not exceed five years; and 9.13 the employee reports to, or submits an application for reemployment to, such employer in accordance with the provisions of 38 USC 4312, subsection (e). 9.2 After completion of approved military leave of absence an employee shall return to work according to the following: (USERRA, Sect (e)) Fitness Exams and Service of 1 to 30 days - on the first full scheduled day of work after a reasonable period for safe transportation home and an eight hour rest period. 3

10 POLICY & PROCEDURE No Service of 31 to 180 days - application for reinstatement must be submitted not later than 14 days after completion of military duty Service of 181 or more days - application for reinstatement must be submitted not later than 90 days after completion of military duty The deadline for reinstatement may be extended for up to 2 years for employees who are convalescing due to a disability incurred or aggravated during military service. 9.3 Documentation upon return (USERRA, Sect (f)). An employee on military leave of absence for a period of 31 days or more must provide documentation showing that: 9.31 The application for reemployment is timely 9.32 The five-year service limitation has not been exceeded 9.33 The separation from service was other than disqualifying under USERRA, Section If employee does not provide satisfactory documentation because it ' s not readily available or does not yet exist, the City will honor the right to reemployment contingent on subsequent production of the documentation. If, after reemployment, documentation becomes available that shows one or more of the reemployment requirements were not met, the City may terminate the employee subject to the appeal rights provided in the applicable MOU or Personnel Rules. (USERRA, Sect (f) (3) (A)). 9.5 Pension Contributions. Pursuant to section 8.2 of this policy, if a person has been absent for military service for 91 or more days, the City may delay making retroactive pension contributions until the employee submits satisfactory return documentation (USERRA, Sect. (f) (3) (B)). 10. DISQUALIFYING SERVICE 10.1 The City has the right to refuse reemployment or terminate an employee for the following circumstances : (USERRA, Sect. 4304): Separation from the service with a dishonorable or bad conduct discharge Separation from the service under other than honorable conditions Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war (Section 1161 (a) of Title 10) Dropping a individual from the rolls when the individual has been absent without authority for more than three months or who is imprisoned by a civilian court (Section 1161 (b) of Title 10). 11. REINSTATEMENT FROM LEAVE 11.1 An employee returning from military leave of absence is entitled to return to the same or equivalent position with equivalent benefits, pay, and other terms and conditions of employment, and without loss of job seniority or any other status or benefits accrued prior to or during military leave provided the employee would still be employed if military leave had not been taken; with the exception of an uncompleted probationary period (USERRA, Sect (a)). In this case, the probationary period must be completed upon reinstatement as described in the applicable MOU or the Staffing Policy If the position has been abolished or otherwise has ceased to exist during the employee's absence, the employee will have the same rights and privileges as though he or she had occupied the position when it ceased to exist (USERRA, Sect ((d) (1) (A)). 4

11 POLICY & PROCEDURE No Service credit accrues during military leave of absence for the purposes of retirement, vacation accrual rate, and employee recognition awards. 12. FUNDING OF BENEFITS 12.1 Health Benefits (USERRA, Sect. 4317) Group health dental and vision plan coverage will be continued at City expense for the dura tiewof. for the first thirty _(a of active military leave as described in paragraph 4.2. FollowinQ the first thirty (30) days of active military leave through the duration of the employee's involuntary active military leave, group health, dental and vision plan coverage will be continued at the City and employee normal contribution rates. Health insurance waiver in lieu of coverage is not available beyond the first 30 calendar days Group health and dental plan coverage will be continued at City expense for up to 180 days of temporary military duty as described in paragraph 4.1. Health insurance waiver in lieu of coverage is not available beyond the first 30 calendar days For military leaves, which extend beyond the limit of City provided health plan coverage; employees may elect to pay for COBRA coverage for up to months. Upon return to duty, health insurance will be reinstated with no waiting period If an employee's monthly COBRA payment is more than 30 days late, the City may terminate coverage Pension/Retirement Plans The following applies to City and employee contributions to PERS and City paid 401(k) contributions for management employees (USERRA, Sect. 4318): a returning employee will be treated as not having incurred a break in service. The City shall maintain employer and appropriate employee contributions to PERS and 401(k), if applicable; military service will be considered service with the City for vesting and benefit accrual purposes; the City will fund any resulting obligation; and the employee is entitled to any accrued benefits from employee contributions only to the extent that the employee repays the employee contributions Upon return from military leave, the employee has a period equal to 3 times the length of service (not to exceed 5 years) within which to make the required contributions to PERS and the City will fund the resulting obligation of the plan within the same time frame (USERRA Sect (b) (2)) Vacation, Sick Leave, and Holidays Eligible employees on paid military leave under sections 4.1 and 4.2 continue to accrue vacation and sick leave while in paid military leave status. Holidays that fall during paid military leave do not accrue and are treated as paid military leave. Employees who continue on a military leave of absence beyond the first thirty (30) days of paid military leave will not accrue any further paid leave. Leave balances for employees on extended military leave of absence will be frozen until the employee returns to City employment and resumes a fully paid status. 5

12 POLICY & PROCEDURE No Unpaid military leave will not effect years of service for the purpose of calculating vacation accrual rate (California Military and Veterans Code, Sect. 395.(d)). 6