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; and (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  9/10/13)

          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 

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          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

           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  
          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  

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          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.


           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  9/10/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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