BILL ANALYSIS Ó
AB 438
Page 1
ASSEMBLY THIRD READING
AB
438 (Chiu)
As Amended April 6, 2015
Majority vote
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|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 | |
| | | | |
| | | | |
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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:
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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,
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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.
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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
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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
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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.
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Analysis Prepared by:
Mark Rakich / INS. / (916) 319-2086 FN: 0000206