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