BILL ANALYSIS Ó
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UNFINISHED BUSINESS
Bill No: SB 400
Author: Jackson (D), et al.
Amended: 8/6/13
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
SENATE FLOOR : 21-12, 5/13/13
AYES: Beall, Block, Corbett, De León, DeSaulnier, Evans,
Galgiani, Hancock, Hill, Jackson, Lara, Leno, Lieu, Liu,
Monning, Padilla, Pavley, Roth, Steinberg, Wolk, Yee
NOES: Anderson, Berryhill, Cannella, Correa, Emmerson, Fuller,
Hernandez, Huff, Knight, Nielsen, Wright, Wyland
NO VOTE RECORDED: Calderon, Gaines, Hueso, Price, Walters,
Vacancy, Vacancy
ASSEMBLY FLOOR : 60-13, 9/9/13 - See last page for vote
SUBJECT : Employment protections: victims of domestic
violence, sexual assault, or stalking
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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
because of his/her known status as a victim of domestic
violence, sexual assault, or stalking, as specified; (3)
requires an employer to provide reasonable accommodation for an
employee who is a victim of domestic violence, sexual assault,
or stalking, as specified.
Assembly Amendments (1) add language to specify that if the
victim provides notice to the employer of the status or the
employer has actual knowledge of the status an employer is
prohibited from discharging or in any manner discriminating or
retaliating against an employee because of the employee's known
status as a victim of domestic violence, sexual assault, or
stalking; (2) add language that requires the employer to provide
reasonable accommodations that may include the implementation of
safety measures or procedures for such a victim; (3) delete
language that created a private right of action for an aggrieved
employee to seek enforcement of those victim status protection
and reasonable accommodation provisions; (4) add a coauthor; and
(5) delete language that if an employee prevails in an action,
the court may award reasonable attorney's fees and cost.
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
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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.
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
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the nature and cost of the accommodation need.
This bill 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, if the victim provides notice to the employer of
the status or if the employer has actual knowledge of the
status.
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/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.
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, including
when an action would violate an employer's duty to furnish
and maintain a place of employment that is safe and
healthful.
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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.Specifies that if circumstances change and an employee needs
a new accommodation, the employee shall request a new
accommodation from the employer.
11.Specifies that if an employee no longer needs an
accommodation, the employee shall notify the employer that
the accommodation is no longer needed.
12.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.
13.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.
14.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.
15.Makes other related and conforming changes.
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
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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.
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
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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
$100,000 and $150,000 to implement the provisions of this bill.
SUPPORT : (Verified 5/7/13) (Unable to reverify at time of
writing)
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
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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
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) (Unable to reverify at time of
writing)
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
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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
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
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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.
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.
ASSEMBLY FLOOR : 60-13, 9/9/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Cooley, Daly,
Dickinson, Eggman, Fong, Fox, Frazier, Garcia, Gatto, Gomez,
Gonzalez, Gordon, Gorell, Gray, Hall, Roger Hernández, Holden,
Jones-Sawyer, Levine, Lowenthal, Maienschein, Medina,
Mitchell, Mullin, Muratsuchi, Nazarian, Olsen, Pan, Perea, V.
Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner,
Stone, Ting, Weber, Wieckowski, Wilk, Williams, Yamada, John
A. Pérez
NOES: Bigelow, Dahle, Donnelly, Beth Gaines, Grove, Hagman,
Harkey, Jones, Melendez, Morrell, Patterson, Wagner, Waldron
NO VOTE RECORDED: Conway, Linder, Logue, Mansoor, Nestande,
Vacancy, Vacancy
PQ:k 9/9/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
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