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 5-1 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 SB 400 (Jackson) 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 structure. 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. SB 400 (Jackson) Page 2 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 Committee. 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 SB 400 (Jackson) 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.