BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 400
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          Date of Hearing:   June 12, 2013

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                               Roger Hernández, Chair
                    SB 400 (Jackson) - As Amended:  April 16, 2013

           SENATE VOTE  :   21-12
           
          SUBJECT  :   Employment protections: victims of domestic violence,  
          sexual assault, or stalking.

           SUMMARY  :   Enacts various employment protections for employees  
          who are victims of domestic violence, sexual assault, or  
          stalking.  Specifically,  this bill  :   

          1)Extends specified existing protections for victims of domestic  
            violence and sexual assault to also include victims of  
            stalking.

          2)Prohibits an employer from discharging, discriminating or  
            retaliating against an employee because of the employee's know  
            status as a victim of domestic violence, sexual assault, or  
            stalking.

          3)Requires an employer to provide reasonable accommodations for  
            a victim of domestic violence, sexual assault, or stalking who  
            requests an accommodation while at work.

          4)Specifies 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, an  
            implemented safety procedure or another adjustment in job  
            structure, as specified.

          5)Specifies 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.

          6)Provides that an employer shall engage in a timely, good  
            faith, and interactive process with the employee to determine  
            effective reasonable accommodations.









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          7)Specifies that these requirements do not require an employer  
            to undertake an action that constitutes an undue hardship on  
            the employer's business operations, as specified.

          8)Requires an employee requesting a reasonable accommodation,  
            upon request of the employer, to provide a written statement  
            by the employee or an individual acting on the employee's  
            behalf, certifying that the accommodation is for an authorized  
            purpose.

          9)Authorizes an employer to also request certification  
            demonstrating the employee's status as a victim of domestic  
            violence, sexual assault, or stalking, as specified, and  
            authorizes the employer to request recertification every six  
            months.


          10)Provides that an employer shall not retaliate against a  
            victim of domestic violence, sexual assault, or stalking for  
            requesting a reasonable accommodation, regardless of whether  
            the request was granted.

          11)Provides that an employee who is discharged or in any other  
            manner discriminated or retaliated against 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.

          12)Provides 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 is guilty of a misdemeanor.

          13)Provides that an employee who is discharged, threatened with  
            discharge, demoted, suspended, or denied a reasonable  
            accommodation may bring a civil action in superior court and  
            if the employee prevails, may be awarded attorney's fees and  
            costs.

          14)Makes other related and conforming changes. 

           EXISTING LAW  :

          1)Provides that an employer may not discharge or in any manner  
            discriminate or retaliate against an employee who is a victim  








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            of domestic violence or sexual assault for taking time off  
            from work to obtain any relief, including but not limited to,  
            a temporary restraining order, restraining order, or other  
            injunctive relief.

          2)Provides that an employer with 25 or more employees may not  
            discharge or discriminate or retaliate against an employee who  
            is a victim of domestic violence or sexual assault for taking  
            time off work to attend to any of the following:

             a)   To seek medical attention for injuries.

             b)   To obtain services from a domestic violence shelter  
               program or rape crisis center.

             c)   To obtain psychological counseling.

             d)   To participate in safety planning and take other actions  
               to increase safety, including temporary or permanent  
               revocation.

          3)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.

          4)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.

          5)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. 

           FISCAL EFFECT  :   According to the Senate Appropriations  








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          Committee, 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. 

           COMMENTS  :   Existing law generally affords employees who are  
          victims of domestic violence or sexual assault the right to take  
          time off from work for specified activities, including obtaining  
          a restraining order or seeking medical attention or  
          psychological counseling.

          This bill seeks to make a number of changes to existing law, as  
          well as to add additional specified protections.  First, this  
          bill would amend existing law related to leave and related  
          provisions to also include victims of stalking.  Second, this  
          bill would prohibit an employer from discharging, discriminating  
          or retaliating against an employee because of the employee's  
          "know status" as a victim of domestic violence, sexual assault,  
          or stalking.  Third, this bill would require an employer to  
          provide reasonable accommodations for a victim of domestic  
          violence, sexual assault, or stalking who requests an  
          accommodation while at work, as specified.  Finally, this bill  
          would establish a civil cause of action and specified remedies  
          for violations of the law.

           Brief Background on Domestic Violence, Sexual Assault, and  
          Stalking
           
          According to Center for Disease Control and Prevention's (CDC)  
          2010 National Intimate Partner and Sexual Violence Survey,  
          nearly 1 in 4 women and 1 in 7 men in the United States have  
          experienced severe physical violence by an intimate partner -  
          among victims of intimate partner violence, more than 1 in 3  
          women experienced multiple forms of rape, stalking, or physical  
          violence.  One in 6 women and 1 in 19 men in the United States  
          have experienced stalking victimization in which they felt very  
          fearful or believed that they or someone close to them would be  
          harmed or killed. 

          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 percent to  
          3.0 percent of U.S. women experienced IPP-DV during the previous  
          12 month period - which is lower than the IPP-DV prevalence  








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          estimate of 6.0 percent 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 United States 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, sponsor of this bill, that found that  
          nearly 40 percent of survivors in California reported either  
          being fired or fearing termination due to domestic violence.   
          The bill would provide employment protections for victims of  
          domestic violence, sexual assault and stalking by ensuring his  
          or her safety in the workplace and prohibiting employer  
          retaliation or discrimination based on an employee's status as a  
          victim.


           Existing Protections Under Current Law  

          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.

          In addition, Code of Civil Procedure section 527.8 provides that  
          "[a]ny employer, whose employee has suffered unlawful violence  
          or a credible threat of violence from an individual, that can  
          reasonably be construed to be carried out or to have been  








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          carried out at the workplace, may seek a temporary restraining  
          order and an injunction on behalf of the employee" and other  
          employees.

           This Bills Extends These Existing Protections to Victims of  
          Stalking

           This bill would extend the existing provisions of law discussed  
          above to victims of stalking.  "Stalking" would be defined to  
          incorporate the definitions contained in the Penal Code and  
          Civil Code.

           This Bill Prohibits Discrimination Based on an Employee's "Known  
          Status" as a Victim  

          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 this  
          bill, 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."  

          Notably, the discrimination and retaliation protections in  
          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.  The  
          author contends that 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.

          Opponents of this bill express concern that this provision would  
          "require employers to inquire into an employee's personal life,  








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          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." 

          The Senate Judiciary Committee analysis of this bill describes  
          the opposition concern and the author's response as follows:

               "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."

          However, opponents (including the California Chamber of Commerce  
          and the Civil Justice Association of California) note that the  
          disclosure requirement only exists for the reasonable  
          accommodation provision of the bill.  As the California Chamber  
          of Commerce states in its letter:

               "Specifically, SB 400 only requires an employee to  
               'disclose' his or her status as a victim for purposes of  
               requesting a reasonable accommodation.  There is no similar  
               disclosure requirement on an employee for the broader  
               anti-discrimination/retaliation protections proposed under  
               this bill.  Rather, an employer is prohibited from  








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               discriminating or retaliating against an employee of  
               domestic abuse, stalking, or sexual assault if the employer  
               simply 'knows' of the employee's protected status."

          In further response to this issue, the author's office states  
          the following:

               "A disclosure requirement is unnecessary for the  
               'discrimination based on known status,' because as with  
               other employment discrimination cases, the plaintiff bears  
               the burden of proving that the employer knew of her status  
               and discriminated against her because of it.  No other  
               legislation requires that an employee disclose his or her  
               protected status if it is not obvious in order to later  
               make a claim that he/she was discriminated against on that  
               basis.  
           
               For instance, in the context of disability law, someone  
               with a non-obvious or hidden disability would have to  
               disclose their disability in order to request a reasonable  
               accommodation.   They would  not  , however, be required to  
               disclose in order to later claim discrimination on the  
               basis of that disability.   Rather, they could (and would  
               have to) prove the employer learned of their disability in  
               some other way."

           Reasonable Accommodation Provisions of the Bill  

          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  








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            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  
          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).)

          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  








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          to define "undue hardship," which has been the standard used by  
          employees, employers, and courts for interpreting "reasonable  
          accommodation" for over 20 years.

          Opponents argue that this provision of the bill would create  
          confusion for employers 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 the bill would create  
          for employers.

          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. 

          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.

           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  
          leave from work to seek judicial relief or who is known to the  
          employer to be a victim of domestic violence, sexual assault, or  








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          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.   
          (Labor 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."  

          Opponents express concern that these new civil action and remedy  
          provisions of the bill would result in increased litigation  
          against employers.  Opponents also question why a civil remedy  
          is necessary when existing law governing leave provisions merely  
          contains an administrative complaint process.

          In response, the author points to evidence from the other states  
          with existing protections that 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.

          Opponents counter that if the number of cases in California  








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          would be extremely low, the administrative complaint process  
          would provide adequate protection and there is no need for a  
          private civil cause of action.

           Protections 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  
            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  








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            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  
            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  








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            are survivors, and it has afforded survivors the opportunity  
            to stay employed and escape violence."

           ARGUMENTS IN SUPPORT  :

          Supporters 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. 

          Supporters argue that firing an employee who discloses that  
          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.  Supporters 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. 

          Finally, supporters 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.  Supporters 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  








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          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.

          Finally, 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.  
           





           PRIOR RELATED LEGISLATION  :

          This bill is similar in concept to the enrolled version of SB  
          1745 (Kuehl of 2006).  SB 1745 would have amended the Civil Code  
          to declare 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 was vetoed by Governor Schwarzenegger who stated the  








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          following:

            "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 employee's  
            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."

          AB 1740 (V. Manuel Pérez) from 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  








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

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          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 Coalition Against Sexual Assault (co-sponsor)
          California Communities United Institute 
          California Labor Federation, AFL-CIO
          California Latinas for Reproductive Justice 
          California National Organization for Women 
          California Partnership to End Domestic Violence (co-sponsor)
          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 
          Centro Legal de la Raza
          Child Abuse Listening and Meditation 
          Community United Against Violence 
          Crime Victims United of California
          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 - Employment Law Center (co-sponsor)
          Legal Aid Society of San Mateo County
          Legal Momentum
          Mountain Crisis Services 
          National Association of Social Workers 
          Next Door Solutions to Domestic Violence
          Numerous Individuals
          Oakland Centro Legal de la Raza








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          Organization of Farmworker Women Leaders in California (Lideres  
          Campesinas)
          Peace Officers Research Association of California 
          Peace Over Violence
          San Francisco Domestic Violence Consortium 
          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 
           
          Associated General Contractors
          California Association of Joint Powers Authority
          California Bankers Association
          California Chamber of Commerce
          California Employment Law Council
          California Framing Contractors Association
          California Grocers Association
          California Hotel and Lodging 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
          Civil Justice Association of California
          National Federation of Independent Business
          South Bay Association of Chambers of Commerce
          Western Electrical Contractors Association


           Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091 












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