BILL ANALYSIS Ó AB 556 Page 1 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 AB 556 Page 2 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 AB 556 Page 3 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 AB 556 Page 4 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 AB 556 Page 5 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 AB 556 Page 6 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 AB 556 Page 7 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 AB 556 Page 8 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 AB 556 Page 9 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 AB 556 Page 10 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