BILL ANALYSIS Ó AB 438 Page 1 ASSEMBLY THIRD READING AB 438 (Chiu) As Amended April 6, 2015 Majority vote ------------------------------------------------------------------- |Committee |Votes |Ayes |Noes | |----------------+------+----------------------+--------------------| |Insurance |9-4 |Daly, Calderon, |Beth Gaines, Travis | | | |Cooley, Cooper, |Allen, Grove, Mayes | | | |Dababneh, Frazier, | | | | |Gatto, Gonzalez, | | | | |Rodriguez | | | | | | | |----------------+------+----------------------+--------------------| |Appropriations |13-4 |Gomez, Bloom, Bonta, |Bigelow, Gallagher, | | | |Calderon, Chang, |Jones, Wagner | | | |Daly, Eggman, Eduardo | | | | |Garcia, Holden, | | | | |Quirk, Rendon, Weber, | | | | |Wood | | | | | | | | | | | | ------------------------------------------------------------------- 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: AB 438 Page 2 1)Provides that both the DWC and the DIR shall be subject to the Dymally-Alatorre Bilingual Services Act (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." 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, AB 438 Page 3 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; 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 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. AB 438 Page 4 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: According to the Assembly Appropriations Committee: 1)Negligible state fiscal effect to DIR. DIR, including DWC, is subject to the Act and its language requirements. 2)Negligible state fiscal effect for SCIF. SCIF is a quasi-state entity, but the only state funds it receives are for administering and paying for workers' compensation benefits for state employees, which are not expected to increase significantly since most state workers are English-speaking. Additionally, it is unclear whether the removing the express exemption of SCIF from the Dymally-Allatore Act would compel SCIF to comply with language access requirements, because it is unclear whether SCIF meets the other criteria (such as direct services to the public) that would require it to comply. 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 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 AB 438 Page 5 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 eight 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. 3)SCIF exemption. This 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 AB 438 Page 6 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 whe-ther 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. 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. AB 438 Page 7 Analysis Prepared by: Mark Rakich / INS. / (916) 319-2086 FN: 0000206