BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 272|
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THIRD READING
Bill No: AB 272
Author: Lackey (R), et al.
Amended: 4/15/15 in Assembly
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 5-0, 6/24/15
AYES: Mendoza, Stone, Jackson, Leno, Mitchell
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 75-0, 5/7/15 - See last page for vote
SUBJECT: California Fair Employment and Housing Act: reserve
peace officers
SOURCE: Author
DIGEST: 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.
ANALYSIS:
Existing law:
1)Prohibits, under the Fair Employment and Housing Act (FEHA),
as a matter of public policy, discrimination and harassment in
employment on the basis of race, religious creed, color,
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Page 2
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.)
2)Prohibits, unless based upon a bona fide occupational
qualification, or, except where based upon 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).)
3)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)
4)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
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for purposes of FEHA.
Comments
Existing law under FEHA bars employment discrimination on the
basis of enumerated protected categories. However, the FEHA
definition of "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.
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 clarifies that reserve peace
officers are employees, therefore protecting them under FEHA.
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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 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified7/8/15)
California Reserve Peace Officers Association
One individual
OPPOSITION: (Verified7/8/15)
California Association of Joint Powers Authorities
California State and Association of Counties
California State and Association of Counties Excess Insurance
Authority
League of California Cities
ARGUMENTS IN SUPPORT: Proponents note that under existing law,
FEHA 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.
ARGUMENTS IN OPPOSITION: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
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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.
ASSEMBLY FLOOR: 75-0, 5/7/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood,
Atkins
NO VOTE RECORDED: Campos, Roger Hernández, Holden, Nazarian,
Steinorth
Prepared by:Deanna Ping / L. & I.R. / (916) 651-1556
7/8/15 11:53:21
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