BILL ANALYSIS Ó
AB 438
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Date of Hearing: April 8, 2015
ASSEMBLY COMMITTEE ON INSURANCE
Tom Daly, Chair
AB 438
(Chiu) - As Introduced February 23, 2015
SUBJECT: State government: workers' compensation: bilingual
services
SUMMARY: Expands the obligation of the Department of Industrial
Relations (DIR) and the Division of Workers' Compensation (DWC)
to provide certain notices in more languages than English and
Spanish. Specifically, this bill:
1)Provides that both the DWC and the DIR shall be subject to the
Dymally-Alatorre Bilingual Services Act, for purposes of the
forms and notices that are required to be provided to injured
workers.
2)Adds reference to the DIR to the provision of law that directs
the DWC to protect the interests of injured workers who are
entitled to the timely provision of compensation.
3)Deletes an express exception for the State Compensation
Insurance Fund (SCIF) from a provision of law that directs
"state agencies" that are "directly involved in the furnishing
of information or rendering of services to the public" to have
qualified bilingual persons in "public contact positions."
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EXISTING LAW:
1)Provides for a comprehensive system to provide workers'
compensation benefits to employees who suffers injuries or
conditions arising out of or in the course of employment.
2)Creates the DWC, headed by an Administrative Director (AD), a
Gubernatorial appointee, who by statute is directed to
administer the workers' compensation program, and carry out
the various general and specific duties involved in that
administration. The DWC is organizationally a unit within the
DIR.
3)Provides for labor law enforcement operations, in addition to
the workers compensation program, within the DIR, including
the Industrial Welfare Commission, the Division of Labor
Standards Enforcement, the Division of Occupational Safety and
Health, among others.
4)Establishes SCIF as a quasi-public entity with the purpose of
selling workers compensation insurance both in the competitive
market and to any employer that is unable to purchase workers'
compensation insurance from a private insurer.
5)Exempts SCIF from a Government Code provision that requires
state agencies that provide services or information to the
public to employ bilingual persons in public contact
positions.
6)Defines "furnishing of information or rendering of services"
to include providing public safety, protection, or prevention;
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administering state benefits; implementing public programs;
managing public resources or facilities; holding public
hearings; or engaging in other state programs or activities.
7)Establishes the Dymally-Alatorre Bilingual Services Act (Act),
which generally requires state agencies to make their services
available in multiple languages. Specifically, the Act:
a) Requires state agencies to conduct a survey every two
years to determine the language needs of their constituents
and the agency's ability to meet those needs, unless
exempted by the State Personnel Board;
b) Requires state agencies that serve a substantial number
of non-English-speaking people, and that provide materials
in English, to also provide the materials in any
non-English-speaking language spoken by a substantial
number of the public served by the agency.
c) Defines "substantial" to be 5% or more of the public
served by any local office or facility of the agency (i.e.,
the DWC's San Francisco office would probably have a
different mix of languages that must be used than the
Fresno office, or the Los Angeles office.)
FISCAL EFFECT: Undetermined
COMMENTS:
1)Purpose. As the author notes in his background materials,
"Workers are vulnerable to injury on the job regardless of the
language they speak." Non-English speaking injured workers
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face challenges when seeking workers' compensation benefits,
including difficulty filling out even basic forms, meeting
deadlines that they were unable to understand from
English-language notices, and otherwise navigating the
complexities of the workers' compensation system. The author
asserts that the DWC is currently not even fully compliant
with existing law mandating both English and Spanish language
forms and notices, but even with the 2 languages, that is
simply not sufficient in light of the ethnic diversity in
California. For example, the author points out that
Massachusetts has 8 languages available to users of its
workers' compensation system. Thus, the bill is aimed at
expanding access to DWC's information by expanding the number
of languages DWC would be required to use, and to close the
"loophole" that exempts SCIF from the Act.
2)Background. According to the Commission on Health and Safety
and Workers' Compensation (CHSWC), almost 15 million
Californians are protected by the workers' compensation laws.
Each year, approximately 500,000 work injuries occur, with
approximately 150,000 of those injuries resulting in lost
work-time. As many as 55,000 of these injured workers are
determined to have at least some degree of permanent
disability, and more than 20,000 suffer injuries so
significant that they cannot return to work. Thus, the
consequences of industrial injuries can be serious for a large
number of people. In light of the complexities of the system,
it cannot be argued that understanding what procedures to
follow, and how to protect one's rights, do not have
significant implications for whether the system is working or
not working for any particular injured worker. In addition,
despite the fact that the bill is sponsored by the California
Applicants' Attorneys Association (CAAA), many cases do not,
or should not, require the intervention of lawyers.
Unfortunately, many non-English-speaking applicants are forced
to seek counsel because they do not understand the notices and
materials they receive.
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3)SCIF exemption. The bill purports to include SCIF within the
Act simply by deleting an express statutory exemption in one
of the Act's provisions. However, it is less than clear that
SCIF's functions meet the Act's requirements, even without the
express exemption. Despite being "quasi-public," the fact
remains that SCIF sells insurance; it does not appear to do
any of the things listed in the definition of "furnishing of
information or rendering of services to the public." Rather
than leave the issue in this uncertain state, the author may
wish to consider creating a separate provision of law, and
specify exactly what it is that SCIF should be required to do
with respect to non-English languages.
A second issue raised by addressing SCIF is whether or not
SCIF's competitors - the private workers' compensation
insurers, and to some extent, the self-insured employers -
should have to provide the same language services as SCIF.
Currently, SCIF covers about 11% of the market. Just a few
years ago, SCIF covered more than 50% of the market. But
regardless of its market position, non-English-speaking
injured workers whose employer is not SCIF insured have the
same challenges and needs as SCIF-covered non-English-speaking
injured workers. From both a competitive perspective, and a
needs perspective, it is not clear why non-English-speaking
injured workers should be treated differently depending on
which insurer his or her employer selected.
4)Inclusion of DIR. Existing law mandates the DWC to use both
English and Spanish languages "in administering and enforcing
this division and Division 4" of the Labor Code. Division 4
is the workers' compensation law. "This division" (Division
2) contains general laws that create a number of entities
within the DIR. By adding the DIR to the mandate of Labor
Code Section 124, it is not clear whether the DIR is being
subjected to the Act only for purposes of workers'
compensation laws, or for the broader purposes of all of the
other programs established in Division 2 of the Labor Code.
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The author may wish to clarify whether or not programs in
addition to the workers' compensation program are intended to
be covered by the bill.
REGISTERED SUPPORT / OPPOSITION:
Support
California Applicants' Attorneys Association
California Immigrant Policy Center
Glendale City Employees Association
Organization of SMUD Employees
San Bernadino Public Employees Association
San Diego County Court Employees Association
San Luis Obispo County Employees Association
Opposition
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None Received
Analysis Prepared by:Mark Rakich / INS. / (916) 319-2086