BILL ANALYSIS Ó 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 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 Hearing Date: April 10, 2013 SB 400 Consultant: Deanna D. Ping Page 3 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 Hearing Date: April 10, 2013 SB 400 Consultant: Deanna D. Ping Page 4 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 Hearing Date: April 10, 2013 SB 400 Consultant: Deanna D. Ping Page 5 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. Hearing Date: April 10, 2013 SB 400 Consultant: Deanna D. Ping Page 6 Senate Committee on Labor and Industrial Relations 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 Senate Committee on Labor and Industrial Relations 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 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 Hearing Date: April 10, 2013 SB 400 Consultant: Deanna D. Ping Page 9 Senate Committee on Labor and Industrial Relations 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 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 Consultant: Deanna D. Ping Page 11 Senate Committee on Labor and Industrial Relations