BILL ANALYSIS �
AB 556
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CONCURRENCE IN SENATE AMENDMENTS
AB 556 (Salas)
As Amended September 5, 2013
Majority vote
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|ASSEMBLY: |70-0 |(May 16, 2013) |SENATE: |37-0 |(September 9, |
| | | | | |2013) |
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Original Committee Reference: JUD.
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
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 bill 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.
The Senate amendments add chaptering out provisions regarding SB
292 (Corbett) of the current legislative session.
EXISTING LAW :
1)Protects, under the federal Uniformed Services Employment and
Reemployment Rights Act (USERRA), 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
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service, application for service, or obligation.
2)Provides, also pursuant to USERRA, 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.
3)Protects, under state law, 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 in the military forces of this state or of the
United States.
4)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.
5)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
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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.
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.
7)Provides, under state law, 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
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.
8)Provides, also under state law 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.
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
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had if he or she had occupied the position when it ceased to
exist and had not taken temporary military leave of absence.
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
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.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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).
The author notes a number of recent media stories describing the
significant unemployment problems many veterans encounter. For
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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 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 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
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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 Military and Veterans
Code (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
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 DFEH 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
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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 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
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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
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.
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."
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
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