BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  AB 1443
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          Date of Hearing:  April 22, 2014

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                  AB 1443 (Skinner) - As Introduced: January 6, 2014
           
                               As Proposed to be Amended
           
          SUBJECT :  DISCRIMINATION AND Harassment: UNPAID interns AND  
          VOLUNTEERS

           KEY ISSUE  :  SHOULD EXISTING PROHIBITIONS AGAINST HARASSMENT AND  
          UNLAWFUL DISCRIMINATION APPLY TO UNPAID INTERNS AND OTHER  
          SIMILAR VOLUNTEERS?

                                      SYNOPSIS

          This bill would apply employment anti-discrimination protections  
          to interns and other unpaid volunteers in the workplace, as  
          specified.  The author and supporters note that unpaid work is  
          an increasingly common phenomenon among both young people  
          seeking to enter the workforce and others compelled to change  
          fields as the result of economic conditions.  Failing to protect  
          vulnerable individuals from otherwise prohibited discrimination  
          is not only inconsistent and unfair, supporters argue, it  
          undermines existing law by communicating to employees that such  
          conduct is appropriate or tolerable in the workplace.  Moreover,  
          extending the specified protections to interns and other unpaid  
          volunteers would appear to be consistent with the existing  
          coverage of non-employee contractors.  There is no known  
          opposition.

           SUMMARY  :  Protects interns and others from harassment and  
          discrimination in employment under the Fair Employment and  
          Housing Act (FEHA).  Specifically,  this bill  covers unpaid  
          interns and other similar arrangements under existing  
          protections against discrimination and harassment in such  
          practices as recruitment, selection, training and retention by  
          employers and other covered entities on the basis of race,  
          religious creed, color, national origin, ancestry, physical  
          disability, mental disability, medical condition, genetic  
          information, marital status, sex, gender, gender identity,  
          gender expression, age, sexual orientation, or military and  
          veteran status.
           








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          EXISTING LAW  prohibits discrimination and harassment by  
          employers, labor unions and employment agencies in employment  
          practices such as recruitment, selection, training and retention  
          of employees and independent contractors on the basis of race,  
          religious creed, color, national origin, ancestry, physical  
          disability, mental disability, medical condition, genetic  
          information, marital status, sex, gender, gender identity,  
          gender expression, age, sexual orientation, or military and  
          veteran status of the person discriminated against.  (Government  
          Code section 12940 et seq.)

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

           COMMENTS  :  The author explains the purpose of the bill as  
          follows:

               Neither federal nor state law explicitly protects unpaid  
               interns from sexual harassment or discrimination. In  
               December, a federal district court in New York ruled that  
               Title VII of the 1964 Civil Rights Act - which protects  
               employees from workplace discrimination, including sexual  
               harassment - does not apply to unpaid interns because an  
               unpaid intern is not an "employee." The New York case  
               involved a Syracuse University student who claimed she was  
               sexually harassed, kissed and groped by a supervisor at her  
               media company internship and, after she rebuffed her  
               supervisor's sexual advances, was also the victim of  
               retaliation.

               Likewise, the California Fair Employment and Housing Act  
               (FEHA) protects employees from sexual harassment, but does  
               not specifically include unpaid interns in its provisions.  
               Furthermore, a recent state court decision held that FEHA  
               does not apply to "volunteers" in the workplace.  My new  
               legislation will change that.  My legislation would  
               explicitly ban workplace sexual harassment of unpaid  
               interns and volunteers. 

               The recession has forced young people to rely on these  
               unpaid positions to build resumes and contacts in an  
               incredibly competitive job market.  According to a 2008  
               survey by the National Association of Colleges and  
               Employers, 50 percent of graduating students held  
               internships, up from the 17 percent shown in a 1992 study  
               by Northwestern University.  Women are significantly more  








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               likely than men (77% versus 23%) to be engaged in unpaid  
               internships.  Women are also more likely to be victims of  
               sexual harassment.  A 2011 ABC News/Washington Post poll  
               found that 1 in 4 women experienced workplace sexual  
               harassment. A person should not give up basic civil rights  
               and workplace protections just because he or she is willing  
               to forgo pay in order to gain work experience.  Employers  
               owe a safe, harassment-free, and fair workplace to all  
               employees, including unpaid interns.

          Supporters argue that many interns work alongside and undertake  
          the same duties as their paid counterparts.  They are subjected  
          to similar treatment from supervisors and exposed to the same  
          workplace environment as those employed by the companies and  
          organizations for which they intern.  Moreover, several  
          professional graduate programs require or typically include some  
          type of internship placement before completion, including social  
          work, law, education and nursing.

           This Bill Is Prompted By Concern About Contrary Interpretations  
          of Similar Laws In Other Jurisdictions.   The FEHA does not  
          currently define the term "employee," and no court has  
          reportedly determined whether the FEHA applies to interns.   
          However, some courts have ruled that other types of volunteers  
          are not protected because they are not "employees" under the  
          common law definition of that term.  Similarly, Title VII of the  
          Civil Rights Act of 1964, the federal equivalent of the FEHA  
          outlawing employment discrimination based on race, color,  
          religion, sex or national origin has been interpreted likewise.   


          For example, one of the major federal cases addressing this  
          issue is O'Connor v. Davis, 126 F.3d 112 (2d Cir. 1997).  Among  
          the allegations made by a student intern in that case were that  
          a supervising physician nicknamed her "Miss Sexual Harassment,"  
          made comments about the intern's private sexual conduct, made  
          sexually suggestive comments, and asked the intern to remove her  
          clothing in preparation for a meeting.  However, the court  
          dismissed the intern's claim for sexual harassment under Title  
          VII because it held that, as an unpaid intern, she was not an  
          "employee" for purposes of the federal harassment law because  
          she had not been "hired."

          Another recent high-profile case in New York garnered  
          significant media attention and has renewed concerns about legal  








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          protections for unpaid interns.  (Wang v. Phoenix Satellite  
          Television US, Inc., Case No. 1:13-cv-00218-PKC (S.D.N.Y.  
          2013).)  In that case, an unpaid intern at a media company filed  
          suit under the New York State Human Rights Law and the New York  
          City Human Rights Law, alleging that she was subjected to a  
          hostile work environment, quid pro quo sexual harassment, and  
          retaliation during the course of her internship.  However, the  
          court dismissed that part of the case, stating that it was  
          "axiomatic" under both federal and state law that compensation  
          is a threshold issue in determining the existence of an  
          employment relationship.  Since the plaintiff was an unpaid  
          intern, and not an employee, the court held that she had no  
          claim under the applicable state and local law.

          Claims filed by interns and volunteers under other federal laws  
          have generally faced similar obstacles.  (See, e.g., Shoenbaum  
          v. The Orange County Center for Performing Arts, 677 F.Supp.  
          1036 (C.D. Cal. 1987)(claim arising under the Age Discrimination  
          in Employment Act); Blankenship v. City of Portsmith, 327  
          F.Supp. 2d 496 (E.D. Va. 2005)(claim arising under the Age  
          Discrimination in Employment Act); Tawes v. Frankford Volunteer  
          Fire Co., 2005 U.S. Dist. LEXIS 786 (D. Del. 2005)(claim arising  
          under the Americans with Disabilities Act).)  A similar holding  
          was reached in Estrada v. City of Los Angeles, 218 Cal. App. 4th  
          143 (2013), a case involving a claim for disability  
          discrimination under FEHA by a reserve officer for the Los  
          Angeles Police Department.  The court held that Estrada was an  
          uncompensated volunteer rather than an employee, despite the  
          fact that such officers were deemed by the City to be employees  
          for the purpose of workers' compensation coverage.  By contrast,  
          some courts have extended the protections of certain employment  
          laws to volunteers where the volunteers receive more extensive  
          benefits.  (See, e.g., Haavistola v. Cmty. Fire Co., 6 F.3d 211  
          (4th Cir. 1994).)  Without taking a position on whether these  
          cases reflect the Legislature's intention with respect to the  
          definition of "employee," this bill would revise and extend the  
          existing FEHA non-discrimination, harassment and reasonable  
          accommodation obligations to interns and those in similar  
          arrangements, regardless of whether the person is referred to as  
          an "intern."  Other volunteers would likewise be included within  
          the prohibitions against harassment.
           
          Other Non-employees Are Covered By Existing Law.   The FEHA  
          already extends protections against harassment to one category  
          of non-employees - i.e., persons "providing services pursuant to  








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          a contract," such as independent contractors.  (Government Code  
          section 12940(j)(1).)  Similar policy arguments can be made to  
          extending FEHA protections to non-employee interns and other  
          volunteers, as proposed by this bill.  While persons under  
          contract are typically paid, the FEHA does not limit its current  
          protection of persons under contract to those who are paid.   
          Indeed, there would appear to be nothing inherent in the  
          principle of non-discrimination to justify prohibiting offensive  
          conduct only when the victim earns monetary compensation or  
          benefits.  

           Protecting Non-Employees May Help to Better Protect Employees.    
          Just as there appears to be no policy rationale for conditioning  
          equal treatment in the workplace on the payment of compensation,  
          it may also be true that protecting non-employees best upholds  
          the value of equal opportunity for paid employees.  This may be  
          readily illustrated in the context of sex harassment.  If a  
          workplace is rife with sexual harassment of interns and other  
          volunteers, the message and impact on paid employees may be no  
          less hostile and damaging than it is when the subjects of the  
          harassment are employees.  Thus, protecting non-employees may  
          better support and vindicate the goals of dignity and equal  
          opportunity reflected in the existing policy against harassment  
          and discrimination.  

          Recent Oregon Legislation.   At least one other state has enacted  
          a rule like the one proposed by this bill.  Supporters state  
          that Oregon Governor John Kitzhaber recently signed into law a  
          bill extending employment discrimination protection to interns.   
          Among other things, the new law grants unpaid interns legal  
          recourse under Oregon's employment discrimination laws for  
          workplace violations including sexual harassment, unlawful  
          discrimination, and retaliation for whistleblowing.  Supporters  
          state that the District of Columbia also protects unpaid interns  
          from discrimination and harassment.

           Author's Clarifying Amendments.   In order to better capture the  
          intent of the measure to protect interns and other volunteers  
          from both harassment and other specified forms of  
          discrimination, the author proposes the following amendments:

          (c) For any person to discriminate against any person in the  
          selection  ,  or    termination,  training,  or other terms or treatment   
          of that person in any apprenticeship training program,   or   any  
          other training program leading to employment    including   an    or  








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          any  unpaid internship  or other program to provide unpaid  
          experience for the participant in the workplace or industry  ,  
          because of the race, religious creed, color, national origin,  
          ancestry, physical disability, mental disability, medical  
          condition, genetic information, marital status, sex, gender,  
          gender identity, gender expression, age, sexual orientation, or  
          military and veteran status of the person discriminated against.

          (j) (1) For an employer, labor organization, employment agency,  
          apprenticeship training program or any training program leading  
          to employment, or any other person, because of race, religious  
          creed, color, national origin, ancestry, physical disability,  
          mental disability, medical condition, genetic information,  
          marital status, sex, gender, gender identity, gender expression,  
          age, sexual orientation, or military and veteran status, to  
          harass an employee, an applicant, an unpaid intern  or volunteer   
          , or a person providing services pursuant to a contract.  
          Harassment of an employee, an applicant, an unpaid intern  or  
          volunteer  , or a person providing services pursuant to a contract  
          by an employee, other than an agent or supervisor, shall be  
          unlawful if the entity, or its agents or supervisors, knows or  
          should have known of this conduct and fails to take immediate  
          and appropriate corrective action. An employer may also be  
          responsible for the acts of nonemployees, with respect to sexual  
          harassment of employees, applicants, unpaid interns  or  
          volunteers  , or persons providing services pursuant to a contract  
          in the workplace, where the employer, or its agents or  
          supervisors, knows or should have known of the conduct and fails  
          to take immediate and appropriate corrective action. In  
          reviewing cases involving the acts of nonemployees, the extent  
          of the employer's control and any other legal responsibility  
          that the employer may have with respect to the conduct of those  
          nonemployees shall be considered. An entity shall take all  
          reasonable steps to prevent harassment from occurring. Loss of  
          tangible job benefits shall not be necessary in order to  
          establish harassment 

          (l) (1) For an employer or other entity covered by this part to  
          refuse to hire or employ a person or to refuse to select a  
          person for a training program leading to employment or to bar or  
          to discharge a person from employment or from a training program  
          leading to employment, or to discriminate against a person in  
          compensation or in terms, conditions, or privileges of  
          employment because of a conflict between the person's religious  
          belief or observance and any employment requirement, unless the  








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          employer or other entity covered by this part demonstrates that  
          it has explored any available reasonable alternative means of  
          accommodating the religious belief or observance, including the  
          possibilities of excusing the person from those duties that  
          conflict with his or her religious belief or observance or  
          permitting those duties to be performed at another time or by  
          another person, but is unable to reasonably accommodate the  
          religious belief or observance without undue hardship, as  
          defined in subdivision (u) of Section 12926, on the conduct of  
          the business of the employer or other entity covered by this  
          part. Religious belief or observance, as used in this section,  
          includes, but is not limited to, observance of a Sabbath or  
          other religious holy day or days, reasonable time necessary for  
          travel prior and subsequent to a religious observance, and  
          religious dress practice and religious grooming practice as  
          described in subdivision (q) of Section 12926.  This subdivision  
          also applies to apprenticeship training programs and other  
          arrangements that are subject to subdivision (c).
           
          In addition, the author wishes to add the following co-authors:  
          Assembly Members: HernŠndez (Principal Co-author), Weber,  
          Yamada; and Sens. Block and Leno

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Equal Rights Advocates (sponsor)
          ACLU of California              
          California Communities United Institute
          California Employment Lawyers Association
          California School Employees Association    
          California Women's Law Center                    
          Legal Aid Society -- Employment Law Center              
          Monarch Services
          National Association of Social Workers - CA chapter
          National Women's Political Caucus of Silicon Valley
          Pianko Law Group                  
          Veterans Caucus of the California Democratic Party              
          Worksafe                     
                   
           Opposition 
           
          None on file
           








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          Analysis Prepared by  :   Kevin G. Baker / JUD. / (916) 319-2334