BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  SB 400
          Author:   Jackson (D), et al.
          Amended:  4/16/13
          Vote:     21

           
           SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE  :  4-1, 4/10/13
          AYES:  Lieu, Leno, Padilla, Yee
          NOES:  Wyland

           SENATE JUDICIARY COMMITTEE  :  5-1, 4/23/13
          AYES:  Evans, Corbett, Jackson, Leno, Monning
          NOES:  Anderson
          NO VOTE RECORDED:  Walters

           SENATE APPROPRIATIONS COMMITTEE  :  5-2, 5/6/13
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NOES:  Walters, Gaines


            SUBJECT  :    Employment protections:  victims of domestic  
                      violence, sexual assault, or stalking

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


           DIGEST  :    This bill (1) expands the protections given 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; (2) prohibits an employer from  
          discharging, retaliating or discriminating against an employee  
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          because of his/her known status as a victim of domestic  
          violence, sexual assault, or stalking; (3) requires an employer  
          to provide reasonable accommodation for an employee who is a  
          victim of domestic violence, sexual assault, or stalking; and  
          (4) creates a private right of action for an aggrieved employee  
          to seek enforcement of those victim status protections and  
          reasonable accommodation provisions.

           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: 

          1. To seek medical attention for injuries caused by domestic  
             violence or sexual assault.

          2. To obtain services from a domestic violence shelter, program,  
             or rape crisis center.

          3. To obtain psychological counseling related to the domestic  
             violence or sexual assault.

          4. To participate in safety planning and take other actions to  
             increase safety from future domestic violence or sexual  
             assault, including temporary or permanent relocation.
               
          5. To appear as a witness in any judicial proceeding or obtain  
             any injunctive relief to help ensure the welfare of the  
             victim or his/her child. 

          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. 

          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. 


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          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. 

          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  
          workplace accommodations. 
          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. 

          This bill extends 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: 

          1. Prohibits discharging, discrimination or retaliation against  
             an employee because of the employee's known status as a  
             victim of domestic violence, sexual assault, or stalking. 

          2. Requires timely good faith 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. 

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             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. 

          3. States that an employer is not required to undertake an  
             action that constitutes an undue hardship on the employer's  
             business operations. 

          4. 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.

          5. Allows the employer to request certification from an employee  
             requesting such accommodation to demonstrate his/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.   
              

          6. Creates a private right of action for an aggrieved employee  
             to seek enforcement of those victim status protection and  
             reasonable accommodation provisions.  

           Comments
           
          According to the Center for Disease Control and Prevention's  
          2010 National Intimate Partner and Sexual Violence Survey,  
          nearly one in four women and one in seven men in the United  
          States have experienced severe physical violence by an intimate  
          partner - among victims of intimate partner violence, more than  
          one in three women experienced multiple forms of rape, stalking,  
          or physical violence.  One in six women and one in 19 men in the  
          U.S. have experienced stalking victimization in which they felt  
          very fearful or believed that they or someone close to them  
          would be harmed or killed. 

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          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  
          report found that national surveys indicate that between 1.3% to  
          3% of U.S. women experienced IPP-DV during the previous 12 month  
          period - which is lower than the IPP-DV prevalence estimate of  
          6% 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 U.S. 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, one of the sponsors of this bill, found  
          that nearly 40% of survivors in California reported either being  
          fired or fearing termination due to domestic violence.  This  
          bill provides employment protections for victims of domestic  
          violence, sexual assault and stalking by ensuring his/her safety  
          in the workplace and prohibiting employer retaliation or  
          discrimination based on an employee's status as a victim. 

           Prior Legislation
           
          SB 1745 (Kuehl, 2006) would have added a provision to the 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.  The bill was vetoed by Governor  
          Schwarzenegger. 

          AB 1740 (Perez, 2012) was very similar to this bill, 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.  The bill  
          was held in the Assembly Appropriations Committee.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee, DIR estimates  
          that it would incur annual costs (special funds) of between  

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          $100,000 and $150,000 to implement the provisions of this bill.

           SUPPORT  :   (Verified  5/7/13)

          California Coalition Against Sexual Assault (co-source)
          California Partnership to End Domestic Violence (co-source)
          Legal Aid Society - Employment Law Center (co-source)
          A Better Balance Work and Family Legal Center
          Alameda County Family Justice Center
          American Civil Liberties Union of California 
          Asian Pacific Islander Legal Outreach 
          California Communities United Institute 
          California Labor Federation, AFL-CIO
          California Latinas for Reproductive Justice 
          California National Organization for Women 
          California Police Chiefs Associations, Inc. 
          California Professional Firefighters 
          California Rural Legal Assistance Foundation
          California School Employees Association 
          California Women's Law Center 
          CARE - USCB
          Center for Domestic Peace 
          Child Abuse Listening and Meditation 
          Community United Against Violence 
          Crime Victims United
          Domestic Violence Solutions for Santa Barbara County  
          Emergency Shelter Program of California 
          Excelligence Learning Corporation 
          Futures Without Violence
          Hawaii State Coalition Against Domestic Violence
          Interface Children and Family Services
          Jewish Family Service of Los Angeles 
          La Casa de las Madres 
          Legal Aid Society of San Mateo County
          Legal Momentum
          Mountain Crisis Services 
          National Association of Social Workers 
          Next Door Solutions to Domestic Violence 
          Oakland Centro Legal de la Raza
          Organization of Farmworker Women Leaders in California (Lideres  
          Campesinas)
          Peace Officers Research Association of California 
          Peace Over Violence
          San Francisco Domestic Violence Consortium 

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          Sargent Shriver National Center on Poverty Law
          South Asian Network 
          U.S. Women's Chamber of Commerce 
          United Auto Workers Local 2865
          Violence Prevention Coalition of Greater Los Angeles 
          Walnut Avenue Women's Center - Family Resource Center
          Western Center on Law and Poverty 
          Williams-Sonoma, Inc.
          Women's Crisis Support - Defenza de Mujeres
          Women's Employment Rights Clinic - Golden Gate University School  
          of Law
          Women's Foundation of California
          Worksafe

           OPPOSITION  :    (Verified  5/7/13)

          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 and Santa Barbara Counties
          National Federation of Independent Business
          South Bay Association of Chambers of Commerce
          Western Electrical Contractors Associations, Inc.

           ARGUMENTS IN SUPPORT  :    Proponents argue that although existing  
          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 this 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 co-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% 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  

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          he/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 U.S. 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.

           ARGUMENTS IN OPPOSITION  :    Opponents argue that this bill  
          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 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 this bill. 

          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.


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          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 Section 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 this bill are necessary, especially in comparison  
          to the significant burden and cost of litigation this bill  
          creates for employers.  
           

          PQ:k  5/7/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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