BILL ANALYSIS Ó
AB 272
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 272
(Lackey) - As Amended March 12, 2015
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: California Fair Employment and Housing Act
KEY ISSUE: Should the anti-discrimination protections of the
Fair Employment and Housing Act be extended to volunteer reserve
and auxiliary peace officers?
SYNOPSIS
The bill would declare that volunteer reserve and auxiliary
peace offers are "employees" for purposes of California's Fair
Employment and Housing Act (FEHA). FEHA prohibits
discrimination in employment on the basis of certain
characteristics, including race, gender, sexual orientation,
religion, and disability. Although existing law defines
"employee" broadly, the courts have generally held that the term
"employee" only applies to those who receive compensation for
services. Last year's AB 1443 (Chapter 302, Stats. of 2014)
provided that the anti-harassment protections of FEHA applied to
unpaid interns and volunteers, but the other anti-discrimination
provisions of FEHA still do not apply to volunteers. This bill
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is largely a response to Estrada v. City of Los Angeles, a 2013
appellate court finding that a volunteer reserve police officer
is not an employee for purposes of FEHA's anti-discrimination
provisions, notwithstanding the fact that the city provided
Estrada and other reserve peace officers workers' compensation
benefits. As introduced this bill would have added reserve
peace officers to the definition of employee in FEHA. However,
rather than add reserve peace officers (alone among all
volunteers) to the otherwise general definition of employee in
FEHA, the author agreed in the Assembly Labor and Employment
Committee to achieve the same end by amending the Penal Code
section that authorizes reserve and auxiliary peace officers to
specify that they are employees for purposes of FEHA. Because
of timing considerations, the amendments agreed to in the
Assembly Labor and Employment Committee will be formally adopted
in this Committee. The analysis reflects those amendments.
There is no known opposition to this bill.
SUMMARY: Provides that any person deputized or appointed by
the proper authority as a reserve deputy sheriff or a reserve
city police officer, 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.
EXISTING LAW:
1)Prohibits, under FEHA, harassment and discrimination in
employment because of race, color, religion, sex, gender,
gender identity, gender expression, sexual orientation,
marital status, national origin, ancestry, mental and physical
disability, medical condition, age, pregnancy, denial of
medical and family care leave, or pregnancy disability leave.
Also prohibits retaliation for exercising one's right to
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report or protest such discrimination or harassment.
(Government Code Sections 12940, 12945, 12945.2.)
2)Provides for purposes of FEHA that an "employee" does not
include any individual employed by his or her parents, spouse,
or child, or any individual employed under a special license
in a nonprofit sheltered workshop or rehabilitation facility.
(Government Code Section 12926 (c).)
3)Defines employee, pursuant to regulations developed by FEHA,
as "any individual under the direction and control of an
employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written." (2 Cal.
Code of Regulations Section 7286.5 (b).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: According to the author, "the purpose of this bill is
to protect reserve peace officers under FEHA." The author
contends that under existing law "there are conflicting
definitions when referring to reserve peace officers, and
uncertainty as to whether they are volunteers or employees."
This bill seeks to remedy this problem by stating unequivocally
that reserve peace officers are "employees" for purposes of FEHA
and are therefore protected by its anti-discrimination
provisions.
By expressly granting employee status to reserve peace officers,
this bill would effectively overturn a 2013 California appellate
court decision. In Estrada v. City of Los Angeles 218 Cal. App.
4th 143 (2013), the court held that the plaintiff, a volunteer
police reserve officer appointed by the Los Angeles Chief of
Police, was not an employee within the meaning of FEHA. The
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plaintiff had contended that he was an employee because the city
provided him with workers' compensation benefits (even though
the city was not required to do so by state law.) Yet the court
held that providing the plaintiff with workers' compensation
coverage did not transform him into an "employee" for purposes
of the FEHA. As a result, the plaintiff could not bring an
action against the city alleging disability discrimination.
As the court noted in Mendoza v Town of Ross 128 Cal. App. 4th
625 (2005), the existing statute does not offer much guidance in
how to define an "employee" for purposes of FEHA. Indeed, the
purported "definition" in existing law does not offer any
affirmative definition at all; rather, it simply states what is
excluded: "'Employee' does not include any individual employed
by his or parents, spouse, or child, or any individual employed
under a special license in a nonprofit sheltered workshop or
rehabilitation facility." (Government Code Section 12926 (c).)
Fortunately, the definition of employee in the FEHA statute is
not the only one. To implement FEHA, the Department of Fair
Employment and Housing enacted regulations that define an
employee as any individual "under the direction and control of
an employer under any appointment or contract of hire of
apprenticeship, express or implied, oral or written." (2 CCR
Section 7286.5 (b).) Although courts in Mendoza and Estrada
concluded that an individual must receive some form of
compensation in order to be considered an employee, the
regulatory definition does not, in fact, include such a
requirement. Rather, the statute only requires that the
individual be "under the direction and control of an employer"
and that the individual be under "appointment" or under
"contract for hire." Reserve peace officers are appointed by,
and under the supervision of, a local law enforcement authority.
Not unreasonably, then, this bill will specify that reserve
peace officers are employees for purposes of FEHA.
Author to Adopt Amendments Proposed by Assembly Labor and
Employment Committee: Although the bill in print seeks to
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achieve the author's end by amending the definition of
"employee" in FEHA, the author agreed in the Assembly Labor and
Employment Committee to place the substantive provision in the
Penal Code section that authorizes and defines the duties of
reserve peace officers. As noted above, the FEHA definition of
employee is structured in negative terms; that is, it defines
the categories of persons excluded from the definition of
employee rather than offering an affirmative definition or
listing categories of persons included within the definition.
As such, adding reserve peace officers affirmatively to the
definition of employee would fit awkwardly within the existing
structure. Alternatively, the Assembly Labor and Employment
Committee recommended amending the Penal Code section that
authorizes reserve peace officers so as to specify that they are
employees for purposes of FEHA. Due to timing considerations,
the amendment agreed to in the prior Committee (which is
detailed below) will be formally adopted in this Committee.
Status of Other Volunteers under FEHA: As noted above, last
year's AB 1443 extended the anti-harassment provisions of FEHA -
but only those provisions - to unpaid interns and volunteers.
This bill will extend all anti-discrimination provisions in FEHA
to volunteer reserve peace officers, who perform effectively the
same functions as paid employees. However, this raises a
significant question as to whether FEHA's anti-discrimination
provisions should protect all volunteers who are appointed to
their position and perform the same functions as paid employees.
This bill focuses on volunteer reserve and auxiliary peace
officers whose duties are similar enough to those of paid
employees that local jurisdictions often grant them benefits,
including Workers' Compensation benefits. But surely reserve
peace officers do not constitute the universe of appointed and
supervised volunteers who perform the same functions as regular
employees. At some point the Legislature may wish to address
the desirability and potential consequences of extending FEHA
protections to volunteers more generally. This bill, however,
responds to a specific court case and accordingly limits itself
to a specific category of volunteers who seem to merit FEHA
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protections.
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 sponsor, the California Reserve Peace
Officers Association, argues 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.
Proposed Author Amendments: Due to timing and scheduling
considerations, the amendments agreed to in the Assembly Labor
and Employment Committee will be formally adopted in this
Committee. The amendment will strike the contents of the bill
in print and add 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.
REGISTERED SUPPORT / OPPOSITION:
AB 272
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Support
California Reserve Peace Officers Association (sponsor)
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334