BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1745| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED SB 1745 Page 2 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 CONTINUED SB 1745 Page 3 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 CONTINUED SB 1745 Page 4 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 CONTINUED SB 1745 Page 5 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 CONTINUED SB 1745 Page 6 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. CONTINUED SB 1745 Page 7 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, CONTINUED SB 1745 Page 8 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 **** END **** CONTINUED