BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  SB 1745|
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                              UNFINISHED BUSINESS


          Bill No:  SB 1745
          Author:   Kuehl (D), et al
          Amended:  8/24/06
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  3-1, 4/25/06
          AYES:  Dunn, Escutia, Kuehl
          NOES:  Ackerman
          NO VOTE RECORDED:  Vacancy

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           SENATE FLOOR  :  23-10, 5/25/06  (NOTE:  This vote may not be  
            relevant)
          AYES:  Alarcon, Alquist, Bowen, Cedillo, Chesbro, Ducheny,  
            Dunn, Figueroa, Florez, Kehoe, Kuehl, Lowenthal, Machado,  
            Migden, Murray, Ortiz, Perata, Romero, Scott, Simitian,  
            Soto, Torlakson, Vincent
          NOES:  Aanestad, Ackerman, Ashburn, Battin, Cox, Dutton,  
            Hollingsworth, Morrow, Poochigian, Runner
          NO VOTE RECORDED:  Denham, Escutia, Maldonado, Margett,  
            McClintock, Speier, Vacancy

           ASSEMBLY FLOOR  :  48-30, 8/28/06 - See last page for vote


           SUBJECT  :    Employment discrimination:  victim of violence

           SOURCE  :     American Civil Liberties Union
                      California Coalition Against Sexual Assault
                      California Commission on the Status of Women
                      California National Organization for Women
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                      California Partnership to End Domestic Violence
                      Legal Aid Society - Employment Law Center


           DIGEST  :    As it left the Senate, this bill declared the  
          intent of the Legislature to develop legislation that  
          protects victims of domestic violence, sexual assault, and  
          stalking from housing and employment discrimination.

          As amended in the Assembly, this bill is narrowed to  
          employment discrimination and provides that it is against  
          the public policy of the state to discriminate against a  
          person in employment because he/she is a victim of domestic  
          violence, sexual assault, or stalking, as defined.

          This bill also contains legislative findings and  
          declarations.

           ANALYSIS  :    This bill declares public policy with respect  
          to certain crime 
          victims, most of whom are women.  Specifically, this bill  
          makes certain findings and declarations and states that it  
          is against the public policy of the state for any employer  
          of one or more employees to harass any individual, or for  
          any employer of five or more employees to harass, refuse to  
          hire or employ, discharge, or otherwise discriminate   
          against any individual in compensation, or in other terms,  
          conditions, or privileges of employment, because the  
          individual is a victim of domestic violence, sexual  
          assault, or stalking.

          This bill contains the following legislative findings:

          1. Domestic violence, sexual assault, and stalking affect  
             many persons without regard to age, race, national  
             origin, sexual orientation, or socioeconomic status.   
             Twenty-one percent of full-time employed persons  
             surveyed identified themselves as victims of domestic  
             violence.

          2. Studies show that up to one-half of domestic violence  
             victims experience job loss.  Forty percent reported  
             on-the-job harassment.  Nearly 50 percent of the sexual  
             assault survivors lose their jobs or are forced to quit  

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             in the aftermath of the assaults.

          3. Retaining employment is vital to independence and  
             recovery for victims of domestic violence, sexual  
             assault, and stalking.

          4. Law enforcement faces obstacles in successfully  
             investigating and prosecuting violent criminals when  
             victims fear adverse employment actions. 

          5. Employers have the tools, including workplace protective  
             orders to maintain workplace safety without terminating  
             or discriminating against victims of domestic violence.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  8/28/06)

          American Civil Liberties Union (co-source)
          California Coalition Against Sexual Assault (co-source)
          California Commission on the Status of Women (co-source)
          California National Organization for Women (co-source)
          California Partnership to End Domestic Violence (co-source)
          Legal Aid Society - Employment Law Center (co-source)
          Asian Americans for Civil Rights and Equality
          Asian Pacific Women's Center
          California Labor Federation
          California Narcotics Officers' Association
          California Peace Officers' Association
          California Police Chiefs' Association
          Community Overcoming Relationship Abuse - CORA
          Community Solutions 
          DOVES - Domestic Violence Education and Services
          Family Services of Tulare County
          Haven Women's Center
          Humboldt Domestic Violence Services
          Lambda Letters Project
          Los Angeles Gay and Lesbian Center
          Marin Abused Women's Services
          Marjaree Mason Center
          North County Women's Resource Center and Shelter
          The Coalition to End Family Violence
          The Riley Center of St. Vincent De Paul Society

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          Safe Alternatives to Violent Environments
          San Francisco District Attorney's Office
          Santa Clara County Domestic Violence Advocacy Consortium
          South Bay Community Services
          South Lake Tahoe Women's Center
          STAND! Against Domestic Violence
          Su Casa Domestic Abuse Network
          Support Network for Battered Women
          WEAVE Inc.
          Western Center on Law and Poverty
          Woman to Woman Domestic Violence Programs
          YWCA of Glendale

           OPPOSITION  :    (Verified  8/28/06)

          California Chamber of Commerce
          California Grocers Association
          California Manufacturers and Technology Association

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          survivors of domestic violence, sexual assault, and  
          stalking often face severe economic barriers when they  
          attempt to leave those who have victimized them.  The  
          ability to gain and keep a job is vital to the independence  
          and recovery for victims of these crimes.  When victims  
          face the additional obstacle of employment discrimination  
          based solely on their status as a victim, when they are  
          fired or demoted or retaliated against, it can further  
          seriously hinder their efforts to survive the violence.   
          Additionally, the efforts of law enforcement officers to  
          investigate and prosecute these violent crimes are impeded  
          when victims live in fear of adverse employment actions. 

          The author's office reports that in one survey 21 percent  
          of people with full time jobs identified themselves as  
          victims of domestic violence, and that studies also show  
          that up to one-half of domestic violence victims experience  
          job loss.  Nearly 50 percent of sexual assault survivors  
          lose their jobs or are forced to quit in the aftermath of  
          the assaults, the author states.  Following reports of  
          violence, some employers terminate employees simply because  
          they are victims.  According to the author's office,  
          domestic violence has also been identified as one of the  
          primary causes of homelessness in cities across the  

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          country, which may also be correlated with job loss.  This  
          bill puts employers and employees on notice that it is  
          against the public policy of California to discharge or  
          take other adverse employment action against an individual  
          in employment because he/she is a victim of domestic  
          violence, sexual assault, or stalking. 

           ARGUMENTS IN OPPOSITION  :    The California Chamber of  
          Commerce states:

            "The California Chamber of Commerce opposes SB 1745  
            (Kuehl), amended August 24, 2006, which seeks to  
            establish a new, unique to California, public policy  
            statute sanctioning new types of employment based  
            lawsuits for issues employers may not have knowledge of  
            or control over. 
             
            "As amended, SB 1745 would establish a statutory  
            statement of public policy prohibiting any person from  
            discharging, refusing to hire or harass any individual,  
            or otherwise discriminate or retaliate against any  
            individual in compensation, or in other terms,  
            conditions, or privileges of employment, 'because the  
            individual is a victim of domestic violence, sexual  
            assault, or stalking.'  The Chamber does not believe it  
            is reasonable to add new employer legal liability over  
            issues over which an employer has no control.

            "SB 1745 opens way to new employment lawsuits.  A  
            statement of public policy, in the absence of any other  
            more specific statutes, permits judges to give  
            permission for wrongful termination lawsuits to proceed  
            Almost always alleged violations of public policy end  
            up in the courts for resolution.  While its not easy to  
            prove a wrongful discharge claim, such claims subject  
            employers to substantial risks and potential damages  
            that even exceed the relief that is available to most  
            victims of harassment or discrimination under other  
            state laws. 

            "SB 1745 permits testing of new types of  
            employment-based lawsuits.  The California Chamber is  
            concerned that SB 1745's creation of new public policy  
            in the Civil Code will permit testing of new legal  

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            theories against employers in court.  If enacted,  
            plaintiffs and their attorneys would be able to use  
            'violations of public policy' under proposed new Civil  
            Code 53.5 as a new basis for an employment  
            discrimination lawsuit.  It is important to note that  
            even when employers are found not guilty of violating a  
            law or public policy, employer legal defense costs may  
            easily reach between $50,000 to $100,000.
            
            "SB 1745 sets up brand new area of legal liability with  
            no administrative resolution is available.  Lawsuits  
            using wrongful discharge in violation of a public  
            policy lets an employee or job applicant to elect to  
            have the lawsuit tried before an often unpredictable  
            jury and can seek damages not only for lost wages and  
            benefits, but also for such subjective and ill-defined  
            matters as pain and suffering and punitive damages.   
            Although an employer's exposure to damages in a  
            wrongful discharge case depends upon the particular  
            facts of each case, employers are very aware that  
            awards by juries exceeding $1 million are not unheard  
            in these types of lawsuits.  The Chamber is concerned,  
            that at the end of the day, SB 1745 ends up being yet  
            another way for trial attorneys and their clients to  
            sue employers for very large monetary awards.

            "Extensive Protections Already Exist.  The California  
            Labor Code currently prohibits employers with 25 or  
            more employees from discharging or discriminating  
            against an employee who takes time off to seek medical  
            attention, obtain services from a domestic violence  
            shelter or rape crisis center, obtain psychological  
            counseling, or participate in safety planning.  Current  
            remedies, if a covered employer is found to have  
            violated the law include: reinstatement, reimbursement  
            for lost wages, interest and reasonable attorney fees,  
            plus court cost.  Employees also are able to seek and  
            obtain large civil penalties through 'Sue Your Boss'  
            (SB 796, Chapter 906, Statues of 2003) lawsuits.   
            Current Labor Code provisions specifically permit the  
            pursuit of additional civil remedies in addition to the  
            ones listed above.
            
            "Employers need positive tools, not more liability.   

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            Today, there are positive tools that employers may  
            utilize to protect their employees from outside  
            harassment by former spouses and partners.  Over the  
            past several years, the California Chamber has worked  
            with a number of members of the legislature to create  
            reasonable laws that provide realistic tools for  
            employers and their workers to combat a societal  
            problem of domestic violence.  These positive  
            alternatives include:

             -    Permitting employers to obtain restraining orders  
               on behalf of workers who are victims of domestic  
               violence or stalking (AB 68X (Alpert), Statutes of  
               1994); 

             -    Enacting a law providing unemployment insurance  
               benefits for workers who separate from work due to  
               domestic violence SB 165 (Solis), (Chapter 411,  
               Statutes of 1997); and

             -    Aided in enacting a new law providing additional  
               protection for workers who take time off from work  
               to deal with legal issues surrounding domestic  
               violence.  (SB 56 (Solis) Chapter 340, Statutes of  
               1999.

            "Creates yet another 'only in California' law.  No  
            other state or federal law imposes such extended  
            liability on employment discrimination claims.  The  
            Chamber believes that SB 1745 will hinder California's  
            ability to attract or retain businesses.  If enacted,  
            employers face extensive new legal and financial  
            liability under yet another law businesses in other  
            states do not face."


           ASSEMBLY FLOOR  : 
          AYES:  Arambula, Baca, Bass, Berg, Bermudez, Calderon,  
            Canciamilla, Chan, Chavez, Chu, Cohn, Coto, De La Torre,  
            Dymally, Evans, Frommer, Goldberg, Hancock, Jerome  
            Horton, Jones, Karnette, Klehs, Koretz, Laird, Leno,  
            Levine, Lieber, Lieu, Liu, Matthews, Montanez, Mullin,  
            Nation, Nava, Negrete McLeod, Oropeza, Parra, Pavley,  
            Ridley-Thomas, Ruskin, Saldana, Salinas, Torrico, Umberg,  

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            Vargas, Wolk, Yee, Nunez
          NOES:  Aghazarian, Benoit, Blakeslee, Bogh, Cogdill,  
            Daucher, DeVore, Emmerson, Garcia, Haynes, Shirley  
            Horton, Houston, Huff, Keene, La Malfa, La Suer, Leslie,  
            Maze, McCarthy, Mountjoy, Nakanishi, Niello, Plescia,  
            Sharon Runner, Spitzer, Strickland, Tran, Villines,  
            Walters, Wyland
          NO VOTE RECORDED:  Richman, Vacancy


          RJG:mel  8/29/06   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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