BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 272 Hearing Date: June 24,
2015
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|Author: |Lackey |
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|Version: |April 15, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Deanna Ping |
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Subject: California Fair Employment and Housing Act: reserve
peace officers
KEY ISSUE
Should the legislature include an appointed or deputized peace
officer in the designation of an employee for the purposes of
the California Fair Employment and Housing Act?
ANALYSIS
Existing law under the Fair Employment and Housing Act (FEHA)
prohibits, as a matter of public policy, discrimination and
harassment in employment 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. Those
protections cover employment applicants, employment training
applicants, employees, and apprentices. (Gov. Code Sec. 12940 et
seq.)
Existing law prohibits, unless based upon a bona fide
occupational qualification, or, except where based upon
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applicable security regulations, as specified, an employer to
refuse to hire or employ a person or to refuse to select a
person for a training program leading to employment or to bar or
to discharge a person from employment or from a training program
leading to employment, or to discriminate against a person in
compensation or in terms, conditions, or privileges of
employment because of a conflict between the person's religious
belief or observance and any employment requirement. (Gov. Code
Sec. 12940(l).)
Existing law provides that whenever a qualified person is
deputized or appointed by the proper authority as a reserve or
auxiliary sheriff or city police officer, a reserve deputy
sheriff, a reserve deputy marshal, a reserve police officer of a
regional park district or of a transit district, among others,
and is assigned specific police functions by that authority, the
person is a peace officer and the authority of a person
designated as a peace officer extends only for the duration of
the person's specific assignment. (Penal Code Sec. 830.6)
Existing law provides that whenever a qualified person is
deputized or appointed by the proper authority as a reserve or
auxiliary sheriff or city police officer, a deputy sheriff, or a
reserve police officer of a regional park district or a transit
district, and is assigned specific police functions by that
authority, the person is an employee of the county, city, city
and county, town, or district for the purposes of worker's
compensation. (Labor Code Sec. 3362.5)
This Bill provides that a person deputized or appointed by the
proper authority as a peace officer pursuant to Penal Code
Section 830.6 including, but not limited to, a person who is
deputized or appointed as a reserve deputy sheriff or a reserve
city police officer, is an employee of the appointing authority
for purposes of the California Fair Employment and Housing Act.
COMMENTS
1. Legislative and Legal Background
Current law under the Fair Employment and Housing Act (FEHA)
bars employment discrimination on the basis of enumerated
protected categories. However, the FEHA definition of
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"employee" (Government Code Section 12926(c)) does not define
who is an employee under the law; but rather excludes specified
individuals from the definition. FEHA regulations define an
employee 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."
There have been several recent state cases where the courts have
denied FEHA coverage to certain categories of "volunteers:"
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. The court held that because Mendoza was
unpaid and did not allege that he was provided any substantial
benefits, he did not meet the definition of "employee" for FEHA
purposes.
Estrada v. City of Los Angeles, 218 Cal. App. 4th 143 (2013),
involved 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.
2. Need for this bill?
According the author, currently there are conflicting
definitions when referring to reserve peace officers, namely an
uncertainty as to whether they are volunteers or employees. AB
272 would clarify that reserve peace officers are employees,
therefore protecting them under the Fair Employment and Housing
Act. The author notes that the proposed bill imposes no
additional requirements on law enforcement agencies as they are
required to abide by these requirements as to their full-time
AB 272 (Lackey) Page 4
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sworn and non-sworn employees in any event - by specifically
defining a reserve peace officer as an employee within the
meaning of FEHA, the same protections will be extended to
reserve peace officers.
2. Proponent Arguments :
Proponents note that under current law, the California Fair
Employment and Housing Act does not include reserve peace
officers. Proponents argue that due to this oversight peace
officers are vulnerable to termination, discrimination and
harassment that should be viewed as unlawful. Proponents note
that reserve peace officers perform the same duties and
functions as full-time peace officers. Proponents argue that
reserve peace officers can be terminated or disciplined on the
basis of their race, age, or sexual orientation and AB 272
corrects this due process problem.
3. Opponent Arguments :
Opponents express concern that AB 272 establishes new liability
for public entities that utilize volunteer reserve officers for
claims of discrimination under FEHA, using valuable resources in
responding to claims, regardless of the merit. Opponents contend
that AB 272 also increases the costs of utilizing volunteers
because of heightened requirements of qualifying, documenting,
and reporting of volunteers to develop a defense against
potential future allegations of discrimination. Lastly,
opponents argue that the public entity will also pay heavily,
even if the plaintiff loses as the employer is prohibited by a
recent case from seeking reimbursement of their attorney fees
and costs when they successfully defend against a FEHA claim by
an employee.
4. Prior Legislation
AB 1443 (Skinner) Chapter 302, Statutes of 2014, 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.
AB 11 (Logue) Chapter 120, Statutes of 2013, requires an
employer employing 50 or more employees to allow an employee who
performs duty as a reserve peace officer or emergency rescue
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personnel to take temporary leaves of absence, for up to 14 days
in a calendar year, to engage in fire, law enforcement, or
emergency rescue training.
SUPPORT
California Reserve Peace Officers Association
1-individual
OPPOSITION
California Association of Joint Powers Authorities
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