BILL ANALYSIS                                                                                                                                                                                                    Ó






                              SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          SB 400 (Jackson)
          As Amended April 16, 2013
          Hearing Date: April 23, 2013
          Fiscal: Yes
          Urgency: No
          TW
                    

                                        SUBJECT
                                           
            Employment Protections:  Victims of Domestic Violence, Sexual  
                                Assault, or Stalking

                                      DESCRIPTION 

          Existing law provides discrimination and retaliation protections  
          for employees who are victims of domestic violence or sexual  
          assault and take time off from work to obtain court ordered  
          relief.  This bill would extend these protections to stalking  
          victims.  This bill would also provide discrimination and  
          retaliation protections for employees whose victim status is  
          known by the employer (whether or not they take time off to seek  
          court assistance).  This bill would also require an employer to  
          provide reasonable safety accommodations for the victim  
          employee, and protect the employee from discrimination or  
          retaliation who requests the accommodation.  This bill would  
          authorize a victim employee, who is discriminated or retaliated  
          against for requesting a safety accommodation, to file a civil  
          action and would authorize an award of reinstatement, back  
          wages, and attorney's fees.

          Existing law also provides discrimination and retaliation  
          protections for employees of employers with 25 or more employees  
          and who are victims of domestic violence or sexual assault and  
          take time off work to seek medical attention, obtain various  
          counseling services, and relocate.  This bill would extend these  
          protections to victims of stalking.  This bill also would  
          authorize an award of equitable relief and attorney's fees to  
          the prevailing employee. 

                                      BACKGROUND  
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          In 1999, the Legislature prohibited discrimination and  
          retaliation against employees who are victims of domestic  
          violence and who take time off to appear in court to obtain, or  
          attempt to obtain, judicial relief to help ensure the health,  
          safety, or welfare of a domestic violence victim or his or her  
          child.  (See SB 56 (Solis, Ch. 340, Stats. 1999).)  Prior to the  
          enactment of SB 56, domestic violence victims were often forced  
          to choose either economic security (stay at work and forego  
          obtaining legal protection) or personal safety (leave work, at  
          the risk of being terminated, to appear in court as a witness or  
          to obtain relief to guarantee their safety and the safety of  
          their children).  

          The next year, the Victims of Domestic Violence Employment Leave  
          Act (AB 2357 (Honda, Ch. 487, Stats. 2000)) provided   
          discrimination and retaliation protections for employees who are  
          victims of domestic violence and take leave from work to seek  
          medical attention or other services related to their abuse.  In  
          2002, AB 2195 (Corbett, Ch. 275, Stats. 2002) extended these  
          protections to employees who are victims of sexual assault. 

          This bill would further extend discrimination and retaliation  
          protections to employees who are victims of stalking.  This bill  
          would also require employers to make reasonable accommodations  
          for employees who are victims of domestic violence, sexual  
          assault, and stalking, as specified.  This bill would also  
          provide civil relief for employees who have been discriminated  
          or retaliated against in violation of these provisions.

          Prior attempts at providing discrimination protections for  
          victims of stalking include SB 1745 (Kuehl, 2006), which, under  
          the Civil Code, would have declared it against public policy for  
          an employer to harass or discriminate against an individual  
          because the person is a victim of domestic violence, sexual  
          assault, or stalking.  SB 1745 passed out of this Committee on a  
          vote of 3-1, and was vetoed by Governor Schwarzenegger because  
          he believed that the precise employee rights and employer  
          obligations were not defined, and that the combination of  
          existing law and the provisions of SB 1745 would place employers  
          in an untenable position. 

          AB 1740 (Perez, 2012) was substantially similar to this bill and  
          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  
                                                                      



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          reasonable accommodations to ensure their safety in the  
          workplace.  AB 1740 was held in the Assembly Appropriations  
          Committee.

          This bill passed out of the Senate Labor and Industrial  
          Relations Committee on April 10 on a vote of 4-1.

                                CHANGES TO EXISTING LAW
          
           1.  Existing law  prohibits an employer from discharging or in any  
            manner discriminating or retaliating against an employee who  
            is a victim of domestic violence or sexual assault for taking  
            time off from work to obtain or attempt to obtain any relief,  
            including, but not limited to, a temporary restraining order,  
            restraining order, or other injunctive relief, to help ensure  
            the health, safety, or welfare of the victim or his or her  
            child.  (Lab. Code Sec. 230(c).)

             Existing law  requires, as a condition of taking time off work  
            as described above, the employee shall give the employer  
            reasonable advance notice of the employee's intention to take  
            time off, unless the advance notice is not feasible.  When an  
            unscheduled absence occurs, the employer shall not take any  
            action against the employee if the employee, within a  
            reasonable time after the absence, provides a certification to  
            the employer in the form of any of the following:
                 a police report indicating that the employee was a  
               victim of domestic violence or sexual assault;
                 a court order protecting or separating the employee from  
               the perpetrator of an act of domestic violence, sexual  
               assault, or other evidence from the court or prosecuting  
               attorney that the employee has appeared in court; or
                 documentation from a medical professional, domestic  
               violence advocate or advocate for victims of sexual  
               assault, health care provider, or counselor that the  
               employee was undergoing treatment for physical or mental  
               injuries or abuse resulting in victimization from an act of  
               domestic violence or sexual assault.  (Lab. Code Sec.  
               230(d).)

             Existing law  provides an administrative complaint process for  
            employees who are victims of domestic violence or sexual  
            assault who have been discriminated or retaliated against for  
            seeking judicial relief.  (Lab. Code Sec. 230(f).)
           
            Existing law  provides that any employee who is discharged,  
                                                                      



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            threatened with discharge, demoted, suspended, or in any other  
            manner discriminated or retaliated against in the terms and  
            conditions of employment by his or her employer because the  
            employee has taken time off to pursue judicial relief related  
            to domestic violence or sexual assault shall be entitled to  
            reinstatement and reimbursement for lost wages and work  
            benefits caused by the acts of the employer.  An employer who  
            willfully refuses to rehire, promote, or otherwise restore an  
            employee or former employee who has been determined to be  
            eligible for rehiring or promotion by a grievance procedure or  
            hearing authorized by law is guilty of a misdemeanor.  (Lab.  
            Code Sec. 230(e).)

             This bill would extend the above protections to an employee  
            who is a victim of stalking.

             This bill  would define "stalking" to mean the definitions used  
            in the Civil and Penal Codes.

             This bill would further prohibit an employer from discharging  
            or in any manner discriminating or retaliating against an  
            employee because of the employee's known status as a victim of  
            domestic violence, sexual assault, or stalking.

             This bill  would require an employer to provide reasonable  
            accommodations for a victim of domestic violence, sexual  
            assault, or stalking who requests an accommodation for the  
            safety of the victim while at work.

             This bill  would provide that reasonable accommodations may  
            include the implementation of safety measures, including a  
            transfer, reassignment, modified schedule, changed work  
            telephone, changed work station, installed lock, assistance in  
            documenting domestic violence, sexual assault, or stalking  
            that occurs in the workplace, an implemented safety procedure,  
            or another adjustment to a job structure, workplace facility,  
            or work requirement in response to domestic violence, sexual  
            assault, or stalking, or referral to a victim assistance  
            organization.

             This bill  would provide that an employer is not required to  
            provide a reasonable accommodation to an employee who has not  
            disclosed his or her status as a victim of domestic violence,  
            sexual assault, or stalking.

             This bill  would require the employer to engage in a timely,  
                                                                      



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            good faith, and interactive process with the employee to  
            determine effective reasonable accommodations.

             This bill  would provide that in determining whether the  
            accommodation is reasonable, the employer shall consider an  
            exigent circumstance or danger facing the employee.

             This bill  would not require the employer to undertake an  
            action that constitutes an undue hardship on the employer's  
            business operations, as defined under the Fair Employment and  
            Housing Act.

             This bill  would provide that upon the request of an employer,  
            an employee requesting a reasonable accommodation shall  
            provide the employer with a written statement signed by the  
            employee or an individual acting on the employee's behalf,  
            certifying that the accommodation is for an authorized  
            purpose.

             This bill  would authorize an employer to request certification  
            from an employee requesting an accommodation that demonstrates  
            the employee's status as a victim of domestic violence, sexual  
            assault, or stalking, and allow an employer who requests  
            certification to request recertification of an employee's  
            status as a victim of domestic violence, sexual assault, or  
            stalking every six months.

             This bill  would provide that any verbal or written statement,  
            police or court record, or other documentation provided to an  
            employer identifying an employee as a victim of domestic  
            violence, sexual assault, or stalking shall be maintained as  
            confidential by the employer and shall not be disclosed by the  
            employer except as required by federal or state law or as  
            necessary to protect the employee's safety in the workplace.   
            The employee shall be given notice before any authorized  
            disclosure.

             This bill  would prohibit an employer from retaliating against  
            a victim of domestic violence, sexual assault, or stalking for  
            requesting a reasonable accommodation, regardless of whether  
            the request was granted.

             This bill  will also provide these employees, in addition to  
            stalking victim employees and employees who have been  
            discriminated or retaliated against for seeking a reasonable  
            accommodation, with the ability to bring a civil action in the  
                                                                      



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            superior court of the appropriate county to enforce those  
            provisions.  This bill would provide that, if the employee  
            prevails in an action pursuant to this subdivision, the court  
            may award reasonable attorney's fees and costs.

             This bill  would provide that, when an employee, who is  
            discriminated or retaliated against by his or her employer  
            because the employee has sought judicial relief related to  
            domestic violence, sexual assault, or stalking, or because the  
            employees known status as a victim of domestic violence,  
            sexual assault, or stalking, or because the employee has  
            requested or received a reasonable accommodation, the employee  
            is entitled to reinstatement and reimbursement for lost wages  
            and work benefits caused by the acts of the employer, as well  
            as appropriate equitable relief.  This bill would continue the  
            existing misdemeanor provision and apply it to claims based on  
            stalking or accommodation.                        

          2.  Existing law  prohibits an employer with 25 or more employees  
            from discharging or in any manner discriminating or  
            retaliating against an employee, who is a victim of domestic  
            violence or sexual assault and takes time off work: 
                 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 as a result of domestic  
               violence or sexual assault; 
                 to obtain psychological counseling related to an  
               experience of domestic violence or sexual assault; or 
                 to participate in safety planning and take other actions  
               to increase safety from future domestic violence or sexual  
               assault, including temporary or permanent relocation.   
               (Lab. Code Sec. 230.1(a).)

             Existing law  provides that as a condition of taking time off  
            for these purposes, the employee shall give the employer  
            reasonable advance notice of the employee's intention to take  
            time off, unless the advance notice is not feasible. When an  
            unscheduled absence occurs, the employer is prohibited from  
            taking any action against the employee if the employee, within  
            a reasonable time after the absence, provides a certification,  
            as specified, to the employer.  (Lab. Code Sec. 230.1(b).)

             Existing law  requires an employer to maintain the  
            confidentiality of the victim employee requesting leave under  
            this provision.  (Lab. Code Sec. 230.1(b)(3).)
                                                                      



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             Existing law  provides that an employee who is discriminated or  
            retaliated against by an employer because the employee has  
            taken time off, as specified, is entitled to reinstatement and  
            reimbursement for lost wages and work benefits caused by the  
            acts of the employer.  Further, an employer who willfully  
            refuses to rehire, promote, or otherwise restore an employee  
            or former employee who has been determined to be eligible for  
            rehiring or promotion by a grievance procedure or hearing  
            authorized by law is guilty of a misdemeanor.  (Lab. Code Sec.  
            230.1(c).)

             This bill  would extend these protections to victims of  
            stalking.

             This bill  would make conforming changes to certification and  
            confidentiality requirements.

             This bill  would provide that, in addition to reinstatement and  
            reimbursement for lost wages and work benefits caused by the  
            acts of the employer, the employee shall also be entitled to  
            appropriate equitable relief.

             This bill  would authorize the court to award reasonable  
            attorney's fees and costs to the prevailing employee.  

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Existing law does not expressly prohibit employment  
            discrimination based on an employee's status as a survivor of  
            domestic violence, sexual assault, or stalking.  Nor does it  
            provide the right to simple accommodations such as a new  
            office extension number or allowing an employee to take unpaid  
            time off from work for a court appearance.  These  
            accommodations are often necessary to enable victims to  
            maintain employment, and consequently, economic independence  
            at a time when it is of utmost importance.

            Several states - New York, Oregon, Rhode Island, Hawaii,  
            Illinois and Connecticut, as well as Puerto Rico - have  
            enacted laws similar to those proposed by SB 400.  
            Additionally, the Federal Government recently issued  
                                                                      



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            guidelines directing federal agencies to implement  
            non-discrimination and safety accommodation policies to  
            protect employees who are survivors of domestic violence,  
            sexual assault, or stalking.

            By implementing SB 400, California would join other states and  
            the federal government in ensuring that victims are able to  
            maintain their jobs while staying safe.

          2.  Extending discrimination and retaliation protections to  
            domestic violence, sexual assault, and stalking victims  

          Existing law provides discrimination and retaliation protections  
          for employees who are victims of domestic violence or sexual  
          assault and take time off from work to obtain judicial relief or  
          to seek medical attention, obtain various counseling services,  
          and relocate.  This bill would extend these protections to  
          stalking victims.  This bill would also provide discrimination  
          and retaliation protections for employees whose victim status is  
          known by the employer (whether or not they take time off to seek  
          court assistance).  

          According to the author, "[t]he effects of domestic violence,  
          sexual assault, and stalking jeopardize a victim's safety and  
          stable source of income.  Studies show alarming rates of job  
          loss and other problems at work due to abuse.  A 2011 study by  
          the Legal Aid Society- Employment Law Center, sponsor of SB 400,  
          found that nearly 40 [percent] of survivors in California  
          reported either being fired or fearing termination due to  
          domestic violence.  A U.S. General Accounting Office study found  
          that close to 50 [percent] of sexual assault victims lost their  
          jobs or were forced to quit following their assault."  

          Worksafe, in support, argues that "no law currently exists that  
          specifically prohibits employers from taking adverse employment  
          actions against victims of domestic violence, sexual assault, or  
          stalking.  Additionally, no statute requires employers to  
          provide reasonable safety accommodations to victims.  Worksafe  
          is particularly supportive of this aspect of the bill, as it  
          seeks to protect workers' health and safety in the workplace,  
          while providing a measure of protection against losing  
          employment.  The guarantees proposed by SB 400 are integral to  
          ensuring that victims continue to have as much stability as  
          possible as they address these difficult issues in their life."

          Notably, the discrimination and retaliation protections in  
                                                                      



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          existing law, which enable employees who are domestic violence  
          or sexual assault victims to continue working, were established  
          to allow working individuals the ability to take advantage of  
          the protections of the civil and criminal justice system.   
          Extending these protections to victims of stalking and providing  
          employees with discrimination and retaliation protections based  
          on their known status as a victim of domestic violence, sexual  
          assault, or stalking, regardless of whether they take leave from  
          work to seek judicial relief or medical or other services, is a  
          common-sense step toward maintaining the protections provided  
          under existing law.

          3.  Reasonable accommodation
           
          This bill would also require an employer to provide reasonable  
          safety accommodations for the victim employee, and prohibit  
          discrimination or retaliation against an employee who requests  
          an accommodation.  

          In support of the reasonable accommodation requirement in this  
          bill, Williams-Sonoma, Inc. states:

            Domestic violence, sexual assault, and stalking often follow  
            victims to the workplace, jeopardizing their safety at work  
            and that of their colleagues, and impacting their ability to  
            earn a steady income.  At Williams-Sonoma, Inc., we have  
            committed to provide reasonable accommodations such as  
            changing a telephone extension, implementing a workplace  
            safety plan, or offering shift changes to survivors of  
            domestic violence, sexual assault and stalking.  We also  
            ensure that victims are not discriminated against based on the  
            abuse they have suffered, and we do our best to maintain the  
            confidentiality of any associate who identifies as a victim  
            and seeks assistance or accommodation.

            We believe by implementing these policies we have improved the  
            safety of all our associates, strengthened our ability to  
            prevent violence in the workplace, affirmed our commitment to  
            maintain an environment where all working parents can thrive,  
            and advanced our mission to enhance our customers' and our  
            associates' lives at home.

          Existing law, the Fair Employment and Housing Act (FEHA),  
          prohibits an employer from discriminating against employees or  
          job applicants with disabilities and requires an employer to  
          engage in an interactive process with a qualified individual to  
                                                                      



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          explore reasonable accommodations that would allow the employee  
          or applicant to perform the essential functions of his or her  
          job.  (Gov. Code Sec. 19240.)  FEHA also provides that an  
          employer is not required to make an accommodation that is  
          demonstrated by the employer to produce undue hardship to its  
          operation.  (Gov. Code Sec. 12940(m).)

          An "undue hardship" is defined as an action requiring  
          significant difficulty or expense, when considered in light of  
          the following factors:
           the nature and cost of the accommodation needed; 
           the overall financial resources of the facilities involved in  
            the provision of the reasonable accommodations, the number of  
            persons employed at the facility, and the effect on expenses  
            and resources or the impact otherwise of these accommodations  
            upon the operation of the facility; 
           the overall financial resources of the covered entity, the  
            overall size of the business of a covered entity with respect  
            to the number of employees, and the number, type, and location  
            of its facilities; 
           the type of operations, including the composition, structure,  
            and functions of the workforce of the entity; and
                    the geographic separateness, administrative, or fiscal  
            relationship of the facility or facilities.  (Gov. Code Sec.  
            12926(t).)

          Notably, this bill would not require an employer to undertake an  
          action that would constitute an undue hardship on the employer's  
          business operations.  This bill would use the definition above  
          to define "undue hardship," which has been the standard used by  
          employees, employers, and courts for interpreting "reasonable  
          accommodation" for over 20 years.  Accordingly, this bill would  
          maintain an appropriate balance between protecting employees who  
          are victims of domestic violence, sexual assault, and stalking  
          and protecting an employer from litigation resulting from  
          unreasonable accommodation demands.

          4.  New civil action and remedies
           
          Existing law provides an administrative complaint process for  
          employees who are victims of domestic violence or sexual assault  
          who have been discriminated or retaliated against for seeking  
          judicial relief.  (Lab. Code Sec. 230(f).)  This bill would  
          authorize an employee to also file a civil action against the  
          employer who discriminates or retaliates against or fails to  
          provide a reasonable accommodation to an employee who has taken  
                                                                      



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          leave from work to seek judicial relief or who is known to the  
          employer to be a victim of domestic violence, sexual assault, or  
          stalking.  This bill would also authorize a victim employee, who  
          is discriminated or retaliated against for requesting a safety  
          accommodation, to file a civil action and, in addition to  
          existing remedies of reinstatement, back wages, would authorize  
          an award of attorney's fees to the prevailing employee.

          Further, existing law provides discrimination and retaliation  
          protections for employees who are victims of domestic violence  
          or sexual assault and take time off work to seek medical  
          attention, obtain various counseling services, and relocate.   
          (Lab. Code Sec. 230.1.)  This bill would authorize an award of  
          equitable relief and attorney's fees to the prevailing employee  
          in any action alleging a violation of that provision.

          The author argues that these provisions are necessary to ensure  
          that employees who are victims of domestic abuse, sexual  
          assault, and stalking are able to maintain their jobs while  
          staying safe.  The author asserts that "[f]iring an employee who  
          discloses that she/he is a victim of domestic or sexual violence  
          or stalking undermines the economic independence and safety of  
          survivors, and discourages the reporting of safety concerns in  
          the workplace for fear of retribution."  

          Arguably, an employer who is aware of a safety danger to the  
          victim employee will be able to better protect other employees  
          from harm.  Further, the Legislature, by enacting the existing  
          prohibitions on victim discrimination and retaliation, has  
          already recognized that providing these victims with statutory  
          protections is an important public policy.  This bill, by  
          authorizing the employee to file a civil action, enhanced  
          remedies, and an award of attorney's fees to the prevailing  
          plaintiff, would provide additional deterrents to employer  
          discrimination and retaliation.

          5.  Victim discrimination and retaliation statutes in other  
            states  

          The author notes the following statutes have already been  
          enacted to provide enhanced employee protections for victims of  
          domestic abuse, sexual assault, and stalking:
            Connecticut state law 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  
                                                                      



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            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 prohibits an employer from firing, penalizing or  
            threatening an employee because "the employee is a victim of  
            family violence."  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.  ((Public Act  
            No. 10-144), amending Conn. Gen. Statute section 54-85(b).)

            Hawaii's Revised Statutes (Section 378-2) include domestic or  
            sexual violence victim status in its anti-discrimination labor  
            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 violence by providing a written  
            statement from the employee, or other sources including,  
            police or court records.

            Oregon Rev. Stat. section 659A.290 prohibits employment  
            discrimination against victims of domestic violence, sexual  
            assault, and stalking.  Oregon law also requires employers to  
            provide leave to victims of these crimes, as well as  
            reasonable safety accommodations.

            New York Human Rights Law section 296 prohibits employment  
            discrimination based on domestic violence victim status. 

            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  
                                                                      



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            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. 
          Further, the Sargent Shriver National Center on Poverty Law,  
          based in Illinois, argues in support of this bill:

            In 2003 then Illinois State Senator Barack Obama partnered  
            with the Shriver Center to pass the Victims' Economic Security  
            and Safety Act, or VESSA, the most comprehensive set of  
            employment protections for employees coping with domestic and  
            sexual violence in the country. . . . The importance of  
            anti-discrimination and accommodation provisions is real.   
            Since enactment in 2003, the Illinois Department of Labor has  
            had a total of 174 complaints filed.  The majority of  
            complaints (98) are related to discrimination, 31 are related  
            to leave, and 33 are a combination of leave and  
            discrimination.  It has been my experience that most cases are  
            settled before a formal complaint is ever filed because many  
            of the reported problems stem from the employer's lack of  
            knowledge about the law rather than the resistance to the law.  
             While more outreach to and education for both employers and  
            employees would always be helpful, I can confidently state  
            that since its enactment, VESSA has been a valuable tool; it  
            has prevented employees from getting fired simply because they  
            are survivors, and it has afforded survivors the opportunity  
            to stay employed and escape violence.

          6.  Opposition concerns 

          Opponents argue that this bill would create confusion for  
          employers and force them into a judicial role to determine when  
          a crime has occurred that triggers the requirements of this bill  
          and raises questions about how to determine what is a reasonable  
          accommodation in these situations or how long the accommodation  
          must be provided.  Opponents further argue that there is no  
          evidence to suggest that existing law is insufficient to help  
          these employees, or that the additional protections in this bill  
          are necessary, especially in comparison to the significant  
          burden and cost of litigation the bill would create for  
          employers.

                                                                      



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          Opponents are also concerned that this bill would "require  
          employers to inquire into an employee's personal life, outside  
          of work, thereby placing them in a legal predicament."   
          Opponents argue that the Labor Code precludes employers from  
          taking any action based upon off-duty conduct, and the  
          California Constitution recognizes that employees have a legal  
          right to privacy in their personal lives and relationships.   
          Further, opponents argue that this bill would prohibit an  
          employer from discriminating against an employee of domestic  
          abuse, stalking, or sexual assault if the employer knows of the  
          employee's protected status.  Opponents assert that "[c]ourts  
          have interpreted a 'knowledge' standard to mean not only actual  
          knowledge, but also constructive knowledge. . . . Accordingly,  
          employers will be potentially forced to choose between:  (1) a  
          claim of discrimination under SB 400 by failing to have known or  
          inferred that the employee is a victim of domestic abuse, sexual  
          assault, or stalking; or (2) a claim for invasion of privacy and  
          violation of the labor code, because the employer inquired into  
          the employee's off-duty personal life." 

          In response to these concerns, the author argues that, with  
          respect to an employer having to play a judicial role to  
          determine whether a crime has been committed that triggers this  
          bill, the employer will still be able to request documentation  
          of the employee's victim status.  Employers are not required to  
          collect their own evidence and can rely upon the documentation  
          provided, making the determination no more of a daunting task  
          than when relying upon documentation from a doctor with regards  
          to a physical disability.  Further, in claiming discrimination  
          or retaliation under this bill, the employee would bear the  
          burden of proving the employer had knowledge of the employee's  
          status.  

          With respect to determining a reasonable accommodation, the  
          author asserts that this bill provides an interactive process  
          between the employer and employee to determine the reasonable  
          accommodation.  Further, an employer would not be required to  
          provide an accommodation that creates an undue burden on the  
          employer.  As for the extent of time the employer must provide  
          the accommodation, this bill would authorize the employer to  
          request further documentation of the employee's status every six  
          months. 

          As for the opposition's argument that existing law already  
          protects victims of domestic abuse, sexual assault, and  
          stalking, the author argues that the protections in current law  
                                                                      



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          do not protect employees from being terminated for their status  
          as a survivor, and do not provide for reasonable accommodations.  
           This bill would directly address these needs, which have been  
          acknowledged and addressed by several states and the federal  
          government.  

          Additionally, opponents contend that this 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.   The author notes that the bill language demonstrates that  
          the responsibility to disclose is with the survivor.  This both  
          helps protect the employer from the concerns mentioned above and  
          also protects the privacy of the survivor to disclose  
          information regarding her status as a victim under her  
          discretion.

          Further, the author disagrees with the contention that this will  
          place a "significant burden" on employers.  This bill already  
          includes language that reasonable accommodation does not need to  
          be provided in cases where it would constitute an undue hardship  
          for the employer.  The author further notes that there are a  
          number of resources that already exist for businesses planning  
          to implement programs to address domestic violence, sexual  
          assault or stalking and many corporations have already  
          proactively implemented supportive policies.

          Lastly, with respect to the opponents' argument that this bill  
          would result in litigation costs, the author points to evidence  
          from the other states with existing protections indicates that  
          litigation is likely to be quite rare.  In Illinois, only 174  
          employment complaints (an average of 17.4 per year) have been  
          filed with the Illinois Department of Labor since 2003.   
          Excluding the claims that only deal with leave, a protection  
          already provided under California law, the number of complaints  
          drops to 98 (or 9.8 per year).  Hawaii also has a law providing  
          antidiscrimination and accommodations protections to victims of  
          domestic violence, sexual assault and stalking.  Hawaii's  
          statute went into effect in 2012 and there were only 3  
          complaints of discrimination based on victim status filed with  
          the agency in that year.  At similar rates, the author argues  
          that the number of cases in California would be extremely low. 

          7.  Governor Schwarzenegger's veto of SB 1745  

          This bill is similar in concept to the enrolled version of SB  
                                                                      



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          1745 (Kuehl, 2006).  In vetoing SB 1745, Governor Schwarzenegger  
          stated:

            This bill would provide that it is contrary to the public  
            policy of the State to discriminate against a person in  
            employment because he or she is a victim of domestic violence,  
            sexual assault, or stalking.  Although I support the intent to  
            ensure victims of these crimes have adequate protections, this  
            bill is too flawed to enact.

            California employers are currently required to take reasonable  
            steps to provide a safe and secure workplace for all  
            employees, including a duty to adequately address the  
            potential for workplace violence.  Because the precise  
            employee rights and employer obligations under this bill are  
            not defined, the combination of existing law and this bill  
            would place employers in an untenable position.

            For instance, if an employer determines that removing an  
            employee from the workplace is necessary to provide a safe  
            workplace and keep other employees safe, the employer may very  
            well be sued for violation of the public policy established by  
            this bill.  On the other hand, if the employer determines an  
            employee must be allowed to continue performing duties in the  
            workplace in order to comply with this bill, the employer may  
            face litigation arising from injuries sustained by other  
            employees if workplace violence occurs.

            I am also concerned that this bill could lead employers, in an  
            effort to comply with the law, to violate an employees  
            privacy.  Because the law is unclear whether an employer must  
            have specific knowledge that an employee is a victim in order  
            for the protections of this bill to apply, an employer may  
            feel compelled to inquire about the personal reasons why an  
            employee has missed worked or taken a prolonged absence.  This  
            is not only an [undue] burden on employers but a possible  
            invasion of employees privacy rights.

            However well intentioned or worthy of consideration, this bill  
            would create conditions that can only be resolved through the  
            courts at great expense to employers and employees alike.


           Support  :  A Better Balance: The Work and Family Legal Center;  
          Alameda County Family Justice Center; American Civil Liberties  
          Union of California; Asian Pacific Islander Legal Outreach;  
                                                                      



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          California Communities United Institute; California Labor  
          Federation, AFL-CIO; California Latinas for Reproductive  
          Justice; California Police Chiefs Associations, Inc.; California  
          Rural Legal Assistance Foundation; California Women's Law  
          Center; Center for Domestic Peace; Centro Legal de la Raza;  
          Child Abuse Listening Mediation; Community United Against  
          Violence; Crime Victims United of California; Domestic Violence  
          Solutions for Santa Barbara County; Emergency Shelter Program;  
          Exelligence Learning Corporation; Futures Without Violence;  
          Hawaii State Coalition Against Domestic Violence; Interface  
          Children & Family Services; Jewish Family Service of Los  
          Angeles; La Casa de las Madres; Legal Aid Society of San Mateo  
          County; Legal Momentum - The Women's Legal Defense and Education  
          Fund; Mountain Crisis Services; Next Door Solutions to Domestic  
          Violence; Organización en California de Líderes Campesinas, Inc;  
           Peace Officers Research Association of California; Peace Over  
          Violence; Sargent Shriver National Center on Poverty Law; South  
          Asian Network; United Automotive Workers, Local 2865; U.S.  
          Women's Chamber of Commerce; Violence Prevent Coalition; Walnut  
          Avenue Women's Center; Western Center on Law & Poverty;  
          Williams-Sonoma, Inc.; Women's Crisis Support - Defensa de  
          Mujeres; Women's Employment Rights Clinic - Golden Gate  
          University School of Law; Women's Foundation of California;  
          Worksafe

           Opposition  :  Associated General Contractors; California  
          Association of Joint Powers Authority; California Chamber of  
          Commerce; 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;  
          Civil Justice Association of California; National Federation of  
          Independent Business; South Bay Association of Chambers of  
          Commerce; Southwest California Legislative Council; Western  
          Electrical Contractors Association, Inc.

                                        HISTORY
           
           Source  :  California Coalition Against Sexual Assault; California  
          Partnership to End Domestic Violence; Legal Aid Society -  
          Employment Law Center

           Related Pending Legislation  :  SB 288 (Lieu, 2013) would provide  
          a list of crimes for which a victim of such crimes could take  
          time off work to appear in court and be protected from employer  
                                                                      



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          discrimination or retaliation.  SB 288 is currently in the  
          Senate Committee on Labor and Industrial Relations and set for  
          hearing on April 24, 2013.

           Prior Legislation  :

          AB 1740 (Perez, 2012) See Background.

          SB 1745 (Kuehl, 2006) See Background.

          AB 2195 (Corbett, Ch. 275, Stats. 2002) See Background.

          AB 2357 (Honda, Ch. 487, Stats. 2000) See Background.

          SB 56 (Solis, Ch. 340, Stats. 1999) See Background.

           Prior Vote  :  Senate Committee on Labor and Industrial Relations  
          (Ayes 4, Noes 1)

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