BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, 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
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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.
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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
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
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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.