BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 556
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          Date of Hearing:  April 9, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                  AB 556 (Salas) - As Introduced: February 20, 2013
                                           
                               As Proposed to be Amended
                                           
          SUBJECT  :  EMPLOYMENT DISCRIMINATION: MILITARY AND VETERANS

           KEY ISSUE  :  SHOULD THE FAIR EMPLOYMENT AND HOUSING ACT BE  
          AMENDED TO STRENGTHEN EXISTING PROTECTIONS AND REMEDIES  
          REGARDING EMPLOYMENT DISCRIMINATION AGAINST ACTIVE MEMBERS OF  
          THE MILITARY AND VETERANS?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This measure would expand existing legal prohibitions regarding  
          job discrimination against active and former members of the  
          military by adding "military and veteran status" to the classes  
          protected by the Fair Employment and Housing Act (FEHA).   
          Because active members of the military are covered by existing  
          state law, the primary expansion of coverage would appear to be  
          the inclusion of veterans, who are not now protected against  
          employment discrimination under state law, although veterans are  
          protected against job discrimination under federal law.   
          Supporters maintain that existing protections are inadequate,  
          and they note that veterans on average suffer much higher rates  
          of unemployment than many other groups, despite the existing  
          state and federal veterans hiring preferences.  In addition to  
          bringing veterans within the classes protected against  
          employment discrimination, the primary effect of adding military  
          and veteran status to the FEHA would apparently be to cover not  
          only employers but also labor organizations and employment  
          agencies, which may not be covered by existing law, and to  
          broaden the types of prohibited discrimination.  The bill has no  
          known opposition.

           SUMMARY  :  Prohibits employment discrimination against all active  
          duty military and veterans of the armed services.  Specifically,  
           this bill  :  

          1)Adds "military and veteran status," to the list of categories  








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            protected from discrimination under the act by employers,  
            labor organizations and employment agencies with respect to  
            all aspects of employment and membership in a labor union. 

          2)Defines "military and veteran status" to mean a member or  
            veteran of the United States Armed Forces, United States Armed  
            Forces Reserve, the United States National Guard, and the  
            California National Guard.

          3)Provides that nothing in this section shall be interpreted as  
            preventing the ability of employers to identify members of the  
            military or veterans for purposes of awarding a veteran's  
            preference as permitted by law.


           EXISTING LAW  :  

           1)Under the federal Uniformed Services Employment and  
            Reemployment Rights Act (USERRA), protects both active duty  
            military and veterans against discrimination by providing that  
            a person who is a member of, applies to be a member of,  
            performs, has performed, applies to perform, or has an  
            obligation to perform service in a uniformed service shall not  
            be denied initial employment, reemployment, retention in  
            employment, promotion, or any benefit of employment by an  
            employer on the basis of that membership, application for  
            membership, performance of service, application for service,  
            or obligation.  (38 U.S.C. 4311.)

          2)Also pursuant to USERRA, provides that any person whose  
            absence from a position of employment is necessitated by  
            reason of service in the uniformed services shall be entitled  
            to specified reemployment rights and benefits and other  
            employment benefits of this chapter.  (38 U.S.C. 4312.)

          3)Under state law, protects active duty military against certain  
            employment practices by providing that: no person or public  
            entity or official shall discriminate against any officer,  
            warrant officer or enlisted member of the military or naval  
            forces of the state or of the United States because of that  
            membership, and that no member of the military forces shall be  
            prejudiced or injured by any person, employer, or officer or  
            agent of any corporation, company, or firm with respect to  
            that member's employment, position or status or be denied or  
            disqualified for employment by virtue of membership or service  








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            in the military forces of this state or of the United States.   
            (Military and Veterans Code section 394.)

          4)Further provides under state law that no employer or officer  
            or agent of any corporation, company, or firm, or other  
            person, shall discharge any person from employment because of  
            the performance of any ordered military duty or training or by  
            reason of being an officer, warrant officer, or enlisted  
            member of the military or naval forces of this state, or  
            hinder or prevent that person from performing any military  
            service or from attending any military encampment or place of  
            drill or instruction he or she may be called upon to perform  
            or attend by proper authority; prejudice or harm him or her in  
            any manner in his or her employment, position, or status by  
            reason of performance of military service or duty or  
            attendance at military encampments or places of drill or  
            instruction; or dissuade, prevent, or stop any person from  
            enlistment or accepting a warrant or commission in the  
            California National Guard or Naval Militia by threat or injury  
            to him or her in respect to his or her employment, position,  
            status, trade, or business because of enlistment or acceptance  
            of a warrant or commission.  (Military and Veterans Code  
            section 394.)

          5)Also provides under state law that no private employer or  
            officer or agent of any corporation, company, or firm, or  
            other person, shall restrict or terminate any collateral  
            benefit for employees by reason of an employee's temporary  
            incapacitation incident to duty in the National Guard or Naval  
            Militia. As used in this subdivision, "temporary  
            incapacitation" means any period of incapacitation of 52 weeks  
            or less.  (Military and Veterans Code section 394.)

          6)Provides that a violation of the foregoing state laws is a  
            misdemeanor, and that any person violating any of the  
            provisions of this section shall be liable for actual damages  
            and reasonable attorney's fees incurred by the injured party.   
            (Military and Veterans Code section 394.)

          7)Under state law further provides that any employee of any  
            corporation, company, or firm, or other person, who is a  
            member of the reserve corps of the armed forces of the United  
            States or of the National Guard or the Naval Militia shall be  
            entitled to a temporary leave of absence without pay while  
            engaged in military duty ordered for purposes of military  








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            training, drills, encampment, naval cruises, special exercises  
            or like activity as such member, providing that the period of  
            ordered duty does not exceed 17 calendar days annually  
            including time involved in going to and returning from such  
            duty.  (Military and Veterans Code section 394.5.)

          8)Also under state law provides that any public employee who is  
            a member of the reserve corps of the Armed Forces of the  
            United States or of the National Guard or the Naval Militia is  
            entitled to a temporary military leave of absence as provided  
            by federal law while engaged in military duty ordered for  
            purposes of active military training, inactive duty training,  
            encampment, naval cruises, special exercises or like activity,  
            providing that the period of ordered duty does not exceed 180  
            calendar days, including time involved in going to and  
            returning from that duty. Specifies that a local public agency  
            may, but is not required to, provide paid military leave of  
            absence for periods of inactive duty training.  (Military and  
            Veterans Code section 395.)

          9)Provides that a covered employee has an absolute right to be  
            restored to the former office or position and status formerly  
            had by him or her in the same locality and in the same office,  
            board, commission, agency, or institution of the public agency  
            upon the termination of temporary military duty. If the office  
            or position has been abolished or otherwise has ceased to  
            exist during his or her absence, he or she shall be reinstated  
            to a position of like seniority, status, and pay if a position  
            exists, or if no position exists the employee shall have the  
            same rights and privileges that he or she would have had if he  
            or she had occupied the position when it ceased to exist and  
            had not taken temporary military leave of absence.  (Military  
            and Veterans Code section 395.)

          10)Establishes that any public employee who has been in the  
            service of the public agency from which the leave is taken for  
            a period of not less than one year immediately prior to the  
            date upon which a temporary military leave of absence begins,  
            shall receive the same vacation, sick leave, and holiday  
            privileges and the same rights and privileges to promotion,  
            continuance in office, employment, reappointment to office, or  
            reemployment that the employee would have enjoyed had he or  
            she not been absent therefrom; excepting that an uncompleted  
            probationary period, if any, in the public agency, must be  
            completed upon reinstatement as provided by law or rule of the  








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            agency. For the purposes of this section, in determining the  
            one year of service in a public agency all service of the  
            employee in recognized military service shall be counted as  
            public agency service.  (Military and Veterans Code section  
            395.)

           COMMENTS  :  In support of the bill the author states:

               The bill raises the issues of discrimination, and unfair  
               employment practices against veterans and members of the  
               uniformed services (US military, US and California National  
               Guard). Current law provides protections for several groups  
               which have traditionally been targeted and discriminated  
               against.  These groups have traditionally been  
               discriminated against in many aspects of life, including  
               employment.  In the spirit of equality and civil rights,  
               fair hiring practices are essential to ensuring everyone  
               has an opportunity to better their condition by attaining a  
               higher standard of living through employment.  Current law  
               doesn't provide sufficient protections for Veterans, which  
               comprise approximately 1.8 million of California's  
               estimated 22.3 million residents (according to CalVet).   
               Military members, both active and reserve, and Veterans  
               fall outside the scope of comprehensive protections that  
               exist within the Fair Employment and Housing Act (FEHA).

           Unemployment Problems Among Veterans.   The author notes a number  
          of recent media stories describing the significant unemployment  
          problems many veterans encounter.  For example, a recent Los  
          Angeles Times article stated:

               Veterans' advocacy groups, and many unemployed veterans,  
               say civilian employers don't always appreciate veterans'  
               skills and maturity. They point out that this is the first  
               generation of employers who have no widespread military  
               experience and thus no inherent appreciation for what the  
               institution can provide.

               Further, the increased military and media attention given  
               to post-traumatic stress disorder and traumatic brain  
               injury has had the effect of stigmatizing veterans,  
               advocates say. Some employers fear that soldiers diagnosed  
               with these conditions are prone to violence or instability.

               The unemployment rate for veterans of Afghanistan and Iraq  








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               is 10.3%, according to the Bureau of Labor Statistics. For  
               veterans age 24 and under, the rate is 29.1%, or 12 points  
               higher than for civilians the same age. That compares with  
               8.2% unemployment nationally, and 7.5% for all veterans.

               A survey this year by the advocacy group Iraq and  
               Afghanistan Veterans of America found that a quarter of its  
               members could not find a job to match their skill level,  
               and half said they did not believe employers were open to  
               hiring veterans.

               "These veterans have skills and maturity a decade beyond  
               their civilian peers," said Tom Tarantino, the group's  
               deputy policy director, who couldn't find work for 10  
               months after he left the Army in 2007. "It's very  
               frustrating for them to be told they have to retrain for  
               jobs they've already been trained for in the military."   
               (Unemployment is a Special Challenge for Veterans, Los  
               Angeles Times, April 25, 2013.)

           This Bill Would Bolster Existing Legal Rights and Remedies  
          Regarding Employment Discrimination Against Veterans and Active  
          Duty Military.   This bill does not write on a blank slate.   
          Existing state and federal law afford certain rights against  
          employment discrimination to both active duty military and  
          veterans, although not as broadly as this bill would provide.   
          For example, veterans are protected against job discrimination  
          under the federal USERRA, but not under state law, which  
          protects only active duty service members.  

          This bill is also broader in that it covers non-employers (labor  
          organizations and employment agencies) who may not be covered by  
          existing law.  (But see Haligowski v. Superior Court
          200 Cal.App.4th 983 (2011)(interpreting MVC section 394 to be  
          consistent with the FEHA in its coverage of potential defendants  
          by excluding liability of individual supervisors ).)

          In one respect however this bill appears to be narrower than  
          existing law in that all employers are covered by existing law,  
          while only employers with five or more employees would be  
          covered by this bill.

          Existing federal and state law appear to cover the same types of  
          adverse employment actions, including harassment, as under this  
          bill, although this bill expressly covers job training programs  








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          that do not appear to be expressly addressed by existing law,  
          although that coverage may be implicit.  This bill may be  
          broader however in that non-intentional "disparate impact"  
          discrimination is prohibited under the FEHA, but it does not  
          appear to be expressly outlawed currently.

          The bill also broadens existing law by making available the  
          services of the Department of Fair Employment and Housing (DFEH)  
          to the parties in disputes concerning alleged unlawful  
          discrimination.  The DFEH is charged with investigating and  
          making a determination regarding complaints of discrimination on  
          the basis of characteristics protected by the FEHA, and with  
          attempting to resolve those complaints where it can, and  
          prosecuting complaints where the Department determines that a  
          violation may have occurred.  

          Both state and federal law likewise provide for a private right  
          of action to enforce existing anti-discrimination protections,  
          as this bill would, although this bill requires filing with the  
          DFEH prior to suit, within one year of the discriminatory act,  
          and exhausting administrative procedures.  Existing state law  
          does not appear to provide an explicit statute of limitations  
          for unlawful discrimination against members of the military, nor  
          does it offer or require an administrative procedure.  Existing  
          federal and state law also authorizes recovery of attorney's  
          fees when a complaining party prevails, although not when the  
          complaining party loses.  This bill by contrast would subject  
          complaining parties to potential exposure to attorney's fees  
          liability when they lose under the general rule of the FEHA.

          This bill would not displace these existing non-FEHA statutory  
          protections against military and veterans discrimination; it  
          would simply add military and veterans status as new protected  
          classes to the FEHA.  

          The author addresses the relationship with existing law as  
          follows:

               Although there are state and federal laws in place to  
               discourage employment discrimination, such discrimination  
               still persists. Active members of the Military and National  
               Guard, and those who are to be activated, are protected  
               from employment termination based on their obligations.  
               However, there are still many instances where the burden of  
               obligations is not the direct cause of the express act of  








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               discrimination or wrongful termination based on  
               discrimination. Current law has loopholes that need to be  
               closed. Additionally, there many of the situations outlined  
               in the Fair Employment and Housing Act that are not covered  
               under state and federal anti-military discrimination laws.  
               For example Non-Job related inquiry can be used to  
               circumvent the restrictions in place against asking about  
               disabilities, including Post-Traumatic Stress Disorders and  
               Traumatic Brain Injuries. Other examples are the right to  
               be free from harassment and the right to be free from a  
               hostile anti-military work environment.    
                   
               Veterans of the United States Armed Forces are currently  
               not protected from discriminatory hiring practices that may  
               come as a result of incorrect assumptions regarding the  
               prevalence of Post-Traumatic Stress Disorder, personality  
               issues, insensitivity to military culture, and because  
               military applicants are non-traditional applicants.  
               Employers express concern over military members stating  
               that they are too non-traditional, too old and will not  
               take orders from younger civilians, and that they have  
               fallen behind their civilian counterparts.    

               This Bill would remedy these injustices and would allow  
               Veterans to attain or not attain employment based solely on  
               their merit instead of prejudice and discrimination. 
                
               Veterans already have a difficult time readjusting to  
               civilian life from which they have been temporarily  
               displaced. In October of 2012, the unemployment rate for  
               young veterans in California Peaked at 43%. Many Veterans  
               returning from foreign conflicts of the past decade are at  
               risk of homelessness as a result of not being able to  
               secure steady employment. 
                       
               This bill would allow veterans to secure and maintain  
               employment without discrimination from employers, and  
               agents, or any other person. Rather than amending a carbon  
               copy of the Fair Employment and Housing Act language into  
               the Military and Veterans code, including "military and  
               veteran status" as a protected group in FEHA would provide  
               a more clear and substantive framework for protecting  
               Military and Veterans from discrimination and harassment.  
               Current law regulating anti-military and veteran  
               discrimination is silent on discrimination by labor  








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               organizations, employment agencies, apprenticeship programs  
               and any person or entity who aids, abets, incites, compels,  
               or coerces the doing of a discriminatory act, as well as  
               retaliation against those who report.

           Various Government Programs Give Veterans Preference in Hiring.    
          Both state and federal law entitle veterans to preferential  
          treatment in hiring for government jobs and promotions.  The  
          bill recognizes that this preference might otherwise be at odds  
          with a prohibition against discrimination, which would normally  
          tend to discourage employers from inquiring about a status or  
          characteristic which the employer is prohibited from  
          considering.  The bill addresses this issue by stating: "Nothing  
          in this section shall be interpreted as preventing the ability  
          of employers to identify members of the military or veterans for  
          purposes of awarding a veteran's preference as permitted by  
          law."

           Business Groups That Generally Oppose Protecting Against Other  
          Forms of Discrimination - Such as Domestic Violence Victims And  
          Unemployed Persons - Do Not Oppose This Bill  .  Reflecting  
          apparent broad comfort with this proposal, the Committee has  
          received no opposition to this bill, in contrast to many prior  
          measures proposing to amend the FEHA.  

          Proposals to add new characteristics or statuses to those  
          covered by the Fair Employment and Housing Act are ordinarily  
          opposed by a long list of business advocates, and typically  
          described as "job killers."  Recent examples include measures to  
          prohibit employment discrimination against domestic violence  
          victims (AB 1740, V.M. Perez of 2012), family caregivers (AB  
          1999, Brownley of 2012), unemployed persons (AB 1450, Allen of  
          2012), familial status (AB 1001, Skinner of 2010) and lawful and  
          qualified users of medical marijuana (AB 2279, Leno of 2008).   
          Business associations have also generally opposed efforts to  
          clarify or strengthen the protections afforded existing groups,  
          such as age discrimination, sex and other forms of harassment,  
          disability discrimination, as well as procedural or remedial  
          rights and protections.  (See, e.g, AB 559 (Swanson) of 2011, AB  
          2773 (Swanson) of 2009, AB 437 (Jones) of 2007, AB 1043  
          (Swanson) of 2008, AB 2874 (Lieber) of 2008, AB 76 (Corbett) of  
          2003, AB 2889 (Laird) of 2003, AB 1599 (Negrete McLeod) of 2002,  
          AB 2222 (Kuehl) of 2000, AB 1643 (Escutia) of 1998.)

           Author's Technical Amendments  .  In order to correct drafting  








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          errors, the author appropriately proposes to insert the term  
          "military and veterans status" in various places where all the  
          existing protected characteristics are listed in the FEHA, but  
          which were inadvertently omitted from the bill.
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Legion - Department of California
          AMVETS - Department of California
          California Association of County Veterans Service Officers
          California State Commanders Veterans Council
          VFW - Department of California
          Vietnam Veterans of California
           
          Opposition 
           
          None on file
           
          Analysis Prepared by  :  Kevin G. Baker / JUD. / (916) 319-2334