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
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Senate Committee on Labor and Industrial Relations
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
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Senate Committee on Labor and Industrial Relations
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
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Senate Committee on Labor and Industrial Relations
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
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Senate Committee on Labor and Industrial Relations
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.
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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.
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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.
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Senate Committee on Labor and Industrial Relations
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
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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
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Senate Committee on Labor and Industrial Relations
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
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Senate Committee on Labor and Industrial Relations