BILL ANALYSIS Ó
AB 272
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Date of Hearing: April 8, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 272
(Lackey) - As Amended March 12, 2015
SUBJECT: California Fair Employment and Housing Act
SUMMARY: Provides that specified reserve peace officers are
considered to be "employees" for purposes of the employment
discrimination provisions of the Fair Employment and Housing
Act.
EXISTING LAW prohibits employment discrimination on the basis of
race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or
military and veteran status.
FISCAL EFFECT: Unknown
COMMENTS: The Fair Employment and Housing Act (FEHA) prohibits
employment discrimination on the bases of enumerated protected
categories. However, the FEHA definition of "employee"
(Government Code Section 12926(c)) does not actually define who
is an employee under the law; it merely excludes specified
individuals from the definition. However, the FEHA regulations
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define an employee as "[a]ny individual under the direction and
control of an employer under any appointment or contract of hire
or apprenticeship, express or implied, oral or written."
Therefore, FEHA provides little or no protection to individuals
who do not meet the definition of "employee" under the law.
Last year, AB 1443 (Skinner) amended FEHA's harassment
provisions to include unpaid interns and volunteers, meaning
that such individuals are now protected from unlawful employment
harassment in a manner similar to employees. However, AB 1443
was narrowly-tailored and generally did not amend the overall
statutory employment discrimination provisions to cover
volunteers or unpaid interns<1>.
As discussed last year, several state cases have refused to
extend FEHA's overall coverage to certain categories of
"volunteers."
One of the most notable cases arising under FEHA was Mendoza v.
Town of Ross, 128 Cal. App. 4th 625 (2005). The plaintiff was
born with cerebral palsy resulting in quadriplegia, and used a
wheelchair. He was retained as a volunteer community service
officer and was assigned to an elementary school and assisted in
traffic duties, crime prevention and neighborhood crime watch
programs. After he was terminated from his volunteer position,
he filed suit alleging wrongful termination and discrimination
based on disability in violation of FEHA. However, the court
held that because Mendoza was unpaid and did not allege that he
was provided any substantial benefits, he did not meet the
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<1> In addition to the harassment provisions, AB 1443 included
unpaid internships in discrimination provisions related to the
selection or termination of individuals for apprenticeship or
similar training programs, and included unpaid internships in
provisions of the law related to religious accommodation.
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definition of "employee" for FEHA purposes.
More recently, a similar holding was reached in Estrada v. City
of Los Angeles, 218 Cal. App. 4th 143 (2013), a case involving a
claim for disability discrimination under FEHA by a reserve
officer for the Los Angeles Police Department. The court held
that Estrada was an uncompensated volunteer rather than an
employee, despite the fact that such officers were deemed by the
City to be "employees" for the limited purpose of extending
workers' compensation benefits to them in the event they were
injured while performing their duties. Therefore, he was not
able to pursue a discrimination claim under FEHA.
This bill responds directly to the Estrada decision by
specifically providing that specified reserve peace officers are
considered to be "employees" for purposes of FEHA.
ARGUMENTS IN SUPPORT
According to the author, this bill would ensure that reserve
peace officers are protected under FEHA and would protect
against their mistreatment and discrimination within the
workplace.
The California Reserve Peace Officers Association supports this
bill, arguing that despite the fact that reserve peace officers
perform "the same duties and functions as full-time peace
officers," they are vulnerable to termination, discrimination
and harassment that should be viewed as unlawful.
COMMITTEE STAFF COMMENT
AB 272
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As discussed above, FEHA does not actually define who is an
employee for statutory purposes. Instead, the statute defines
who is not an employee. Therefore, amending the statute to
define employee to include one specific category of individual
may have unintended consequences and result in a negative
implication that those not specifically defined are somehow
excluded from the definition.
Therefore, the author has agreed to add language to the Penal
Code, rather than amending FEHA. Specifically a new subdivision
(a)(3) to Penal Code Section 830.6 to read as follows:
"Any person that is deputized or appointed by the proper
authority as a reserve deputy sheriff or a reserve city police
officer, and any other person deputized or appointed by the
proper authority as a peace officer pursuant to subsection (a)
or (b) of this section 830.6, is an employee of the county,
city, city and county, town, district or other such proper
authority for all purposes of the California Fair Employment
and Housing Act, Part 2.8 (commencing with Section 12900) of
Division 3 of Title 2 of the Government Code."
However, due to legislative deadlines, this amendment will be
adopted in the Assembly Judiciary Committee, to which this bill
is double-referred.
REGISTERED SUPPORT / OPPOSITION:
Support
AB 272
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California Reserve Peace Officers Association (Sponsor)
Opposition
None on file.
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091