BILL ANALYSIS                                                                                                                                                                                                    Ó

                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair

          SB 400 (Jackson) - Employment Protections: Victims of Domestic  
          Violence, Sexual Assault or Stalking
          Amended: April 16, 2013         Policy Vote: L&IR 4-1, Judiciary  
          Urgency: No                     Mandate: Yes
          Hearing Date: May 6, 2013       Consultant: Robert Ingenito
          This bill does not meet the criteria for referral to the  
          Suspense File.

          Bill Summary: SB 400 would extend existing protections for  
          victims of domestic violence and sexual assault to victims of  
          stalking. The bill would additionally prohibit an employer from  
          retaliating against an employee because of the employee's known  
          status as a victim of domestic violence, sexual assault, or  
          stalking and requires the employer to make reasonable  
          accommodation for such victims.

          Fiscal Impact: The Department of Industrial Relations (DIR)  
          estimates that it would incur annual costs (special funds) of  
          between $100,000 and $150,000 to implement the provisions of  
          this bill. 

          Background: The Division of Labor Standards Enforcement (DLSE)  
          is a division within DIR. The DLSE, headed by the Labor  
          Commissioner, is responsible for the adjudication of wage  
          claims, the investigation of discrimination and public work  
          complaints, and the enforcement of Labor Code statutes and  
          Industrial Welfare Commission orders.

          Current law authorizes the Labor Commissioner to accept,  
          investigate, and resolve complaints of employment discrimination  
          involving protections guaranteed by the Labor Code, including  
          claims for retaliation for violations of any law under the  
          jurisdiction of the Labor Commissioner. The DLSE Retaliation  
          Complaint Unit (RCI) investigates complaints which allege  
          discrimination in the workplace on the basis of various Labor  
          Code sections.  Any employee or applicant for employment who  
          believes he or she was discharged or denied employment or  
          otherwise retaliated or discriminated against in violation of  


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          Page 1

          any law under the jurisdiction of the Labor Commissioner may  
          file a complaint with the Labor Commissioner.  

          After filing a complaint, the employee is contacted by an RCI  
          Investigator. The employee, the employer, and any witnesses may  
          be interviewed. The investigator then prepares a written report  
          and forwards it to the Labor Commissioner for review. In few  
          limited cases, if the Labor Commissioner feels there is a need  
          to obtain further information, an investigative hearing may be  
          held.  The Labor Commissioner issues a determination of any  
          violations based on the facts outlined in the report (or hearing  
          if one is held) and prescribes appropriate remedies. If a party  
          disagrees with the determination of the Labor Commissioner, an  
          appeal may be filed with the Director of DIR whose decision  
          shall become that of the Labor Commissioner. If the employer  
          fails to remedy the violation in accordance with the Labor  
          Commissioner's determination, DLSE must file a civil action in  
          superior court to enforce the administrative determination.

          The amount of time required to investigate a single RCI case  
          varies depending on the factual complexity, but DLSE estimates  
          it requires approximately 128 staff hours for each case for  
          initial review, working with a Deputy during investigation, and  
          review of determination, as well as processing of all files,  
          paperwork, filing, routing, mailing, opening and closing cases.

          Proposed Law: This bill prohibits an employer from  
          discriminating or retaliating against an employee who is a  
          victim of stalking, and requires the employer to make reasonable  
          accommodations in a timely manner for an employee who is a  
          victim of domestic violence (DV), sexual assault, or stalking.   
          Specifically, this bill: 

               Defines reasonable accommodations to include the  
              implementation of safety measures, including transfer,  
              reassignment, modified schedule, changed work information ,  
              installation of locks, implementing safety procedures,  
              assistance in documenting DV, sexual assault, or stalking  
              that occurs in the workplace, or another adjustment to a job  

               Further specifies the provisions of this bill do not  
              require the employer to undertake an action that constitutes  
              undue hardship, as currently defined in statute.  


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               Entitles an employee to reinstatement and reimbursement  
              for lost wages and work benefits if an employee is  
              discharged, threatened with discharge, demoted, suspended,  
              or in any other manner discriminated against or retaliated  
              against by his or her employer due a request for reasonable  
              accommodations, as specified. 

               Establishes that 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 the provisions of this bill is guilty of a misdemeanor  
              punishable by up to six months in county jail and/or a fine  
              of up to $1,000.  

               Extends current law protections regarding taking time off  
              from work to deal with issues related to DV and sexual  
              assault to stalking issues.  

          Related Legislation: 
                 AB 1740 (Perez, 2012) was substantially similar this  
               bill. AB 1740 was held in the Assembly Appropriations  

          Staff Comments: DIR data indicate that its workload includes an  
          average of nine cases annually related to victims of domestic  
          violence and sexual assault. Assuming proportionality, adding  
          stalking victims to the existing two victim categories could  
          reasonably increase the number of cases by one-third, which  
          would result in approximately five additional cases per year.

          The bill also adds two entirely new categories of protection for  
          all three protected categories of victims (domestic violence,  
          sexual assault, or stalking) which prohibits discrimination or  
          retaliation for an employee's known status of victims of these  
          crimes and requires reasonable accommodation and protection for  
          employees who request such accommodations. 

          In 2010, the Attorney General's Office reported roughly 166,000  
          statewide domestic violence-related calls for assistance, with  
          more than 65,000 of those calls involving a weapon. Assuming 25  
          percent of those calls lead to subsequent employment-related  


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          Page 3

          protections under this portion of the bill, 41,500 victims may  
          fall under the new protections. However, it is likely that not  
          all victims under this protection will file a claim with DLSE.  
          Based on the experience of other states, it is reasonable to  
          assume a similar percentage of the 41,500 incidences for a year  
          could be potential complainants filed for employment related  
          violations falling under the status of victim. Thus, these new  
          protections may result in approximately 25 claims. Of these, it  
          is estimated that 9 to 13 cases would be filed with DLSE. 

          Investigations for these claims (five cases for the additional  
          accommodation of victims of stalking plus the 9 to 13 cases for  
          reasonable accommodation, or 14 to 18 cases total) would occur  
          in the Retaliation Complaint Investigation (RCI) unit within  
          DLSE. DIR estimates that this scenario would require an  
          additional Deputy Labor Commissioner I, and a partial Deputy  
          Labor Commissioner III and Office Technician position to  
          accommodate the assumed workload. The fiscal impact of this bill  
          as currently written is estimated to be between $100,000 and  
          $150,000 for staffing required for implementation.