BILL ANALYSIS                                                                                                                                                                                                    






                 Senate Committee on Labor and Industrial Relations
                                 Ted W. Lieu, Chair

          Date of Hearing: April 10, 2013              2013-2014 Regular  
          Session                              
          Consultant: Deanna D. Ping                   Fiscal:Yes
                                                       Urgency: No
          
                                   Bill No: SB 400
                                   Author: Jackson
                      As Introduced/Amended: February 20, 2013 
          

                                       SUBJECT
          
            Employment protections: victims of domestic violence, sexual  
                                assault, or stalking


                                     KEY ISSUES

          Should the legislature expand on the protections to victims of  
          domestic violence and sexual assault who take time off to obtain  
          any relief (such as a temporary restraining order) to victims of  
          stalking?

          Should the legislature prohibit an employer from retaliating or  
          discriminating against an employee because of his or her known  
          status as a victim of domestic violence, sexual assault, or  
          stalking?

          Should the legislature require an employer to provide reasonable  
          accommodation for an employee who is a victim of domestic  
          violence, sexual assault, or stalking?  

                                      ANALYSIS
          
           Existing law  states that an employer may not discharge,  
          discriminate or retaliate against an employee who is a victim of  
          domestic violence or sexual assault for taking time off from  
          work to attend to any of the following: 

                 To seek medical attention for injuries caused by  
               domestic violence or sexual assault 
                 To obtain services from a domestic violence shelter,  
               program, or rape crisis center









                 To obtain psychological counseling related to the  
               domestic violence or sexual assault 
                 To participate in safety planning and take other actions  
               to increase safety from future domestic violence or sexual  
               assault, including temporary or permanent relocation         
                    
                 To appear as a witness in any judicial proceeding or  
               obtain any injunctive relief to help ensure the welfare of  
               the victim or his or her child. 
            (Labor Code 230 and 230.1)
           
          Existing law  states that an employee who is discharged,  
          threatened with discharge, suspended, or in any other manner  
          discriminated against for taking time off for the above purposes  
          is entitled to reinstatement and reimbursement for lost wages  
          and work benefits and may file a complaint with the Division of  
          Labor Standards Enforcement. Additionally, an employer that  
          willfully refuses to rehire, promote, or otherwise restore an  
          employee who has been determined to be eligible for rehiring or  
          promotion is guilty of a misdemeanor. (Labor Code 230.1)

           Existing law  states that an employee shall give the employer  
          reasonable advance notice of the employee's intention to take  
          time off, unless the advance notice is not feasible. 
          (Labor Code 230)

           Existing law  states that when an unscheduled absence occurs, the  
          employer shall not take any action against the employee if  
          certification is provided within a reasonable time, including a  
          police report, court order protecting the employee from the  
          perpetrator, or documentation from a medical professional,  
          victim advocate, health care provider or counselor stating the  
          employee was undergoing treatment from an act of domestic  
          violence or sexual assault. 
          (Labor Code 230.1)

           Existing law under the federal American with Disabilities Act  
          and the California Fair Employment and Housing Act  prohibits  
          employer discrimination in the workplace, and requires an  
          employer to engage in an interactive process with a qualified  
          individual (employee or prospective employee) to evaluate the  
          nature of that individual's disability and explore reasonable  
          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 2

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          workplace accommodations. (42 U.S.C. 12112 and Gov. Code  
          12940)

          However,  existing law  states that an employer does not have to  
          provide this accommodation if it produces an undue hardship,  
          defined as an action requiring significant difficulty or  
          expense, when considered in light of specified factors such as  
          the nature and cost of the accommodation need. (Gov. Code 12926  
          and 12940)
           
          
          This Bill  would extend the protections to victims of domestic  
          violence and sexual assault addressed above to victims of  
          stalking as well as adds the status as a victim of domestic  
          violence, sexual assault, or stalking (as defined in penal code)  
          to the protections against retaliation and discrimination  
          available in existing law. 

          Specifically,  this bill  : 

             a.   Prohibits discrimination or retaliation against an  
               employee because of the employee's known status as a victim  
               of domestic violence, sexual assault, or stalking. 

             b.   Requires timely reasonable accommodation for the  
               workplace safety for a victim of domestic violence, sexual  
               assault, or stalking and defines examples of effective  
               reasonable accommodation as:

                      a)            A transfer, reassignment or modified  
                        schedule
                      b)            Changed work telephone, changed work  
                        station or installed lock 
                      c)            Assistance in documenting domestic  
                        violence, sexual assault, or stalking that occurs  
                        in the workplace 
                      d)            An implemented safety procedure,  
                        workplace facility, or work requirement in  
                        response to domestic violence, sexual assault, or  
                        stalking or referral to a victim assistance  
                        organization 

          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 3

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             a.   States that an employer is not required to undertake an  
               action that constitutes an undue hardship on the employer's  
               business operations. 

             b.   Requires an employee seeking accommodation, on the  
               request of the employer, to provide a written statement  
               signed by the employee or an individual acting on the  
               employee's behalf, certifying that the accommodation is  
               related to the employee's status as a victim of domestic  
               violence, sexual assault or stalking.

             c.   Allows the employer to request certification from an  
               employee requesting such accommodation to demonstrate his  
               or her status as a victim of domestic violence, sexual  
               assault, or stalking and requires all documentation to be  
               kept confidential by the employer except as required by  
               federal or state law or as necessary to protect the  
               employee's safety in the workplace.   

             d.   Would create a private right of action for an aggrieved  
               employee to seek enforcement of those victim status  
               protection and reasonable accommodation provisions.  


                                      COMMENTS

          1.  Need for this bill?

             According to Center for Disease Control and Prevention's (CDC)  
            2010 National Intimate Partner and Sexual Violence Survey,  
            nearly 1 in 4 women and 1 in 7 men in the United States have  
            experienced severe physical violence by an intimate partner -  
            among victims of intimate partner violence, more than 1 in 3  
            women experienced multiple forms of rape, stalking, or  
            physical violence. One in 6 women and 1 in 19 men in the  
            United States have experienced stalking victimization in which  
            they felt very fearful or believed that they or someone close  
            to them would be harmed or killed. 

            Another report, Women's Health: Findings from the Women's  
            Health Survey, 1997-2003 compared national surveys of intimate  
            partner physical domestic violence (IPP-DV) to California. The  
          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 4

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            report found that national surveys indicate that between 1.3  
            percent to 3.0 percent of U.S. women experienced IPP-DV during  
            the previous 12 month period - which is lower than the IPP-DV  
            prevalence estimate of 6.0 percent that was obtained from the  
            1998 California Women's Health Survey. 

            The author's office contends that the prevalence of domestic  
            violence, sexual assault, and stalking in the United States  
            and specifically California has a harmful effect on the  
            ability of victims to maintain employment. The author's office  
            brought attention to a recent study by the Legal Aid Society -  
            Employment Law Center, sponsor of SB 400, that found that  
            nearly 40 percent of survivors in California reported either  
            being fired or fearing termination due to domestic violence.  
            The bill would provide employment protections for victims of  
            domestic violence, sexual assault and stalking by ensuring his  
            or her safety in the workplace and prohibiting employer  
            retaliation or discrimination based on an employee's status as  
            a victim. 

          2.  Domestic Violence, Sexual Assault, and Stalking Protections in  
            Other States:
           
            Connecticut state law (Public Act No. 10-144) prohibits an  
            employer from firing, penalizing or threatening an employee  
            for attending or participating in a court proceeding related  
            to a civil case in which the employee is a victim of family  
            violence, including an incident resulting in physical harm,  
            bodily injury or assault, or an act of threatened violence  
            that constitutes fear of imminent physical harm, bodily injury  
            or assault between family or household members. Connecticut  
            state law also requires employers to give employee victims of  
            family violence up to twelve days of unpaid leave during a  
            calendar year, in addition to other leave provided under state  
            and federal law, to seek medical care or psychological  
            counseling, obtain services from a domestic violence  
            assistance organization, victim relocation or participate in  
            criminal proceedings related to or resulting from family  
            violence.  

            Hawaii's Revised Statutes (Section 378-2), include domestic or  
            sexual violence victim status in its anti-discrimination labor  
          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 5

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            laws and requires employers to make reasonable accommodations  
            for victims of domestic or sexual violence, including, but not  
            limited to changing contact information such as telephone  
            number or email address, screening the employee's telephone  
            calls, changing the work location for the employee, installing  
            locks and other security devices and allowing the employee to  
            work flexible hours.  Hawaii state law also allows employers  
            to request that the employee verify that he or she is a victim  
            of domestic or sexual abuse by providing a written statement  
            from the employee, or other sources including, police or court  
            records.

            Illinois' Compiled Statutes (Section 820, ILCS 180/15)  
            prohibits employer discrimination based on an employee's  
            status as a victim of domestic or sexual violence. Illinois  
            state law also entitles employed victims of domestic or sexual  
            violence and employees with a family or household member who  
            is a victim to take unpaid leave to seek medical help, legal  
            assistance, counseling, safety planning, and other assistance  
            without penalty from their employers. The state's law also  
            protects employees from discharge and harassment when, in  
            response to actual or threatened domestic or sexual violence,  
            they request an adjustment to their job structure, workplace  
            facility, work requirement, including a transfer,  
            reassignment, or modified schedule, leave, a changed telephone  
            number or seating assignment, installation of a lock or  
            implementation of a safety procedure. 

          3.  Suggested Amendment on Reasonable Accommodation:

             The concept of reasonable accommodation was applied in a  
            disability context under the Americans with Disabilities Act  
            of 1990 (ADA), which required employers to reasonably  
            accommodate an employee or job applicant to successfully  
            perform the position's duties without changing the essential  
            duties of the job. According to the EEOC's Enforcement Guide:  
            Reasonable Accommodation and Undue Hardship under ADA, when an  
            individual with a disability requests a change due to a  
            medical condition, the request does not necessarily mean that  
            the employer is required to provide the change. The request  
            for reasonable accommodation is the first step in an informal,  
            interactive process between the individual and the employer.  
          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 6

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            The passage of these acts requires an employer to reasonably  
            accommodate, meaning making a modification or adjustment to a  
            job or the work environment to enable a qualified employee  
            with a disability to perform the essential functions of the  
            job. The interactive process is a good faith and collaborative  
            dialogue between the employer and employee to determine the  
            most effective reasonable accommodation. This process is also  
            included with reasonable accommodations under California's  
            Fair Employment and Housing Act (FEHA). 

            Given the inclusion of the interactive process in the  
            reasonable accommodation process under ADA and FEHA, the  
            adoption of the following language (modeled after 12940 of  
            FEHA) as an amendment is suggested for SB 400: 

            On Page 3, line 34 and 35:

            (4)  The employer shall make reasonable accommodations in a  
            timely fashion.  The employer shall engage in a timely, good  
            faith, interactive process with the employee to determine  
            effective reasonable accommodations.  
           
            The language above pertains to the interactive process  
            directing the commencement of the reasonable accommodation;  
            however, the language does not mention the process to be taken  
            once the accommodation is no longer necessary or requires  
            changes. As the bill moves forward, the author may want to  
            address this.

          4.  Suggested Clarifying Amendment on Attorney's Fees:

            SB 400 allows an employee who is discharged, threatened with  
            discharge, demoted, suspended, or denied a reasonable  
            accommodation to bring a civil action in the superior court  
            against the employer. The current language allows the court to  
            award reasonable attorney's fees and costs if an employee  
            prevails in an action, however it would provide more clarity  
            to the provisions of the bill to include "If the employee  
            prevails in an action pursuant to this paragraph, the court  
            may award reasonable attorney's fees and costs" under Labor  
            Code 230 (i) which pertains to the rights of the employee to  
            bring a civil action in superior court. 
          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 7

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          5.  Double Referral:
           
            SB 400 has been doubled referred to Senate Judiciary  
            Committee. 

          6.  Proponent Arguments  :
            
            Proponents argue that although current law recognizes a  
            victim's need to take time off work, it is simply not enough  
            for victims of domestic violence, sexual assault and stalking.  
            According to one of the bill's sponsors, the Legal Aid Society  
            - Employment Law Center, domestic violence, sexual assault,  
            and stalking have a harmful effect on the ability of victims  
            to maintain employment. The sponsor points to various  
            statistics that illustrate the alarming rates of job loss and  
            other problems at work due to the abuse - one study in  
            particular found that nearly 50 percent of survivors of sexual  
            assault lost their jobs or were forced to quit following the  
            assault. 

            Proponents argue that firing an employee who discloses that he  
            or she is a victim of domestic or sexual violence or stalking  
            undermines California public policy to protect the economic  
            independence and safety or victims and to encourage employees  
            to report safety concerns in the workplace without fear of  
            retribution. Proponents also maintain that refusing to provide  
            a reasonable safety accommodation upon an employee's request,  
            such as a changed telephone extension or implementing a  
            workplace safety place, forces a victim to choose between  
            their own safety and financial security when they are at their  
            most vulnerable. 

            Lastly, proponents bring attention to the guidelines issued by  
            the United States government last February. The guidelines  
            direct federal agencies to implement non-discrimination and  
            accommodation policies in their workplaces in order to protect  
            employees dealing with domestic violence, sexual assault and  
            stalking. Proponents contend that it is vital for California  
            to follow this example and protect the employment of victims  
            when they are most in need of financial stability and  
            workplace safety. 
          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 8

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          7.  Opponent Arguments  :

            Opponents argue that SB 400 forces employers into a judicial  
            role, given the task to determine when a crime has occurred  
            for purposes of triggering these proposed protections. They  
            contend that employers are not in a position to make such  
            decisions as unlike other existing protected classifications  
            that are more objective, determining who is a victim of  
            domestic abuse, sexual assault, or stalking is a daunting task  
            for employers. Additionally, opponents contend that the bill  
            puts employers in a difficult legal predicament between  
            respecting employee off-duty privacy and collecting sufficient  
            information to determine if an employee is a victim as  
            classified under SB 400. 

            Further, opponents argue that the requirement to reasonably  
            accommodation an employee who is a victim of domestic abuse,  
            sexual assault, or stalking is unclear. Opponents maintain  
            that unlike an employer's duty to accommodate a physical  
            disability, the extent to which is generally documented by a  
            medical provider, the employer has no clear guidance to  
            determine what qualifies as a reasonable accommodation.  
            Additionally, opponents argue that is it unclear how long an  
            employer must accommodate the employee.

            Lastly, opponents argue that there are already significant  
            protections for victims of domestic violence, sexual assault,  
            and stalking including those discussed in existing law, the  
            extension of workers' compensation benefits to employees who  
            are victims of a crime at the workplace, and the Code of Civil  
            Procedure (527.8) that allows an employer to obtain a  
            restraining order on behalf of an employee. Opponents maintain  
            that there is no evidence to suggest that the additional  
            protections in SB 400 are necessary, especially in comparison  
            to the significant burden and cost of litigation the bill  
            would create for employers. 


          8.  Prior Legislation  :

            SB 1745 (Kuehl) of 2006 would have added a provision to the  
          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 9

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            Civil Code that declared it against the public policy of the  
            state for any employer to harass or discriminate against an  
            individual because the person is a victim of domestic  
            violence, sexual assault, or staking. SB 1745 was vetoed by  
            Governor Schwarzenegger. 

            AB 1740 (Perez) of 2012 was very similar to SB 400, would have  
            prohibited employers from discriminating against employees who  
            are victims of domestic violence, sexual assault, or stalking  
            and would have allowed employees to request reasonable  
            accommodation to ensure their safety in the workplace. AB 1740  
            was held in Assembly Appropriations.

                                       SUPPORT

          Legal Aid Society - Employment Law Center (LAS-ELC) (Co-Sponsor)
          California Partnership to End Domestic Violence (CPEDV)  
          (Co-Sponsor)
          California Coalition Against Sexual Assault (CalCASA)  
          (Co-Sponsor)
          A Better Balance Work and Family Legal Center
          Alameda County Family Justice Center
          American Civil Liberties Union of California (ACLU)
          Asian Pacific Islander Legal Outreach (APILO)
          California Communities United Institute (CalCOMUI)
          California Labor Federation, AFL-CIO
          California Police Chiefs Associations Inc. (CPCA)
          California Rural Legal Assistance Foundation
          Center for Domestic Peace (CDP)
          Centro Legal de la Raza
          Community United Against Violence (CUAV)
          Crime Victims United
          Domestic Violence Solutions for Santa Barbara County (DVS-SBC) 
          Emergency Shelter Program of California (ESPCA)
          Exelligence Learning Corporation 
          Futures Without Violence
          Hawaii State Coalition Against Domestic Violence
          Interface Children & Family Services
          Jewish Family Service of Los Angeles (JFS)
          LA CASA DE LAS MADRES
          Legal Aid Society of San Mateo County 
          Legal Momentum - The Women's Legal Defense and Education Fund 
          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 10

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          Peace Officers Research Association of California (PORAC)
          Peace Over Violence
          Sargent Shriver National Center on Poverty Law
          South Asian Network 
          US Women's Chamber of Commerce (USWCC)
          Walnut Avenue Women's Center 
          Western Center on Law & Poverty (WCLP)
          Women's Crisis Support - Defenza de Mujeres
          Women's Employment Rights Clinic - Golden Gate University School  
          of Law
          Worksafe
          
                                     OPPOSITION

          California Chamber of Commerce 
             Associated General Contractors 
          California Association of Joint Powers Authority 
          California Employment Law Council 
          California Grocers Association 
          California Independent Grocers Association 
          California League of Food Processors 
          California Manufacturers and Technology Association 
          California Restaurant Association 
          Chambers of Commerce Alliance Ventura & Santa Barbara Counties 
          National Federation of Independent Business 
          South Bay Association of Chambers of Commerce 
          Western Electrical Contractors Association, Inc.














          Hearing Date:  April 10, 2013                            SB 400  
          Consultant: Deanna D. Ping                               Page 11

          Senate Committee on Labor and Industrial Relations