BILL ANALYSIS                                                                                                                                                                                                    Ó





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               AB 438       Hearing Date:     June 24,  
          2015
           ----------------------------------------------------------------- 
          |Author:    |Chiu                                                 |
          |-----------+-----------------------------------------------------|
          |Version:   |June 1, 2015                                         |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|Gideon Baum                                          |
          |           |                                                     |
           ----------------------------------------------------------------- 
          
            Subject:  State government: workers' compensation: bilingual  
                                      services.


          KEY ISSUE
          
          Should the Legislature promote the translation of Division of  
          Workers' Compensation (DWC) and Department of Industrial  
          Relations (DIR) forms to additional languages beyond English and  
          Spanish?

          ANALYSIS
          
           Existing law  creates the Dymally-Alatorre Bilingual Services  
          Act, which requires that:

             1)   Every state agency that makes contact with a substantial  
               number of non-English speakers in providing information or  
               services must employ a sufficient number of qualified  
               bilingual persons in public contact positions. (Government  
               Code §7292)
             2)   Any state agency materials explaining services available  
               to the public shall be translated into any non-English  
               language spoken by a substantial number of the public  
               served by the agency. The determination of when these  
               materials are necessary when dealing with local agencies  








          AB 438 (Chiu)                                           Page 2  
          of ?
          
               shall be left to the discretion of the local agency.  
               (Government Code §7295)

           Existing law also requires that if a state agency finds that the  
          factors below exist, the state agency must distribute the  
          applicable written materials in the appropriate non-English  
          language through its statewide and local offices or facilities  
          to non-English-speaking persons, or make translation aids, as  
          specified, available in completing and understanding English  
          forms or questionnaires.

          These factors are:

             1)   The written materials require the furnishing of  
               information from an individual or provide that individual  
               with information.
             2)   The information affects the individual's rights, duties,  
               or privileges with regard to that agency's services or  
               benefits.
             3)   The statewide or local office or facility of the agency  
               with which the individual is dealing, serves a substantial  
               number of non-English-speaking persons.

          (Government Code §7295.4)

           Existing law  defines a "substantial number of  
          non-English-speaking people" as members of a group who either do  
          not speak English, or who are unable to effectively communicate  
          in English because it is not their native language, and who  
          comprise 5 percent or more of the people served by the statewide  
          or any local office or facility of a state agency. 
          (Government Code §7296.2)
           
          This bill  would require that workers' compensation forms and  
          notices required to be given to employees by the Department of  
          Industrial Relations (DIR) or the Division of Workers'  
          Compensation (DWC) must comply with the Dymally-Alatorre  
          Bilingual Services Act.


          COMMENTS
          

          1.  Need for this bill?








          AB 438 (Chiu)                                           Page 3  
          of ?
          
            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 existing law mandating both English and Spanish  
            language forms and notices, but even with the 2 languages, the  
            number of translated forms 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.

          2.  Staff Comments:  

            AB 438 presents incredible opportunities to improve outcomes  
            and equity in California's workers' compensation system - as  
            well as challenges. Both will be discussed below.

             1)   Shooting Pandas and Workers' Compensation
          
            Currently, AB 438 is open to dueling interpretations. The bill  
            reads as follows: 
            ?

            Forms and notices required to be given to employees by the  
            department or the division shall be in English and comply with  
            the Dymally-Alatorre Bilingual Services Act ? 
            (Emphasis added)

            The plain reading of this statute is that, if the department  
            or division is required to give a form or notice to an  
            employee, then DIR/DWC must ensure that those forms comply  
            with the Dymally-Alatorre Act. As the Act only applies to  
            governmental entities, this reading makes sense: DIR and DWC  
            need to make sure that their notices and services are  
            accessible to all, and AB 438 addresses an ambiguity in the  
            law. It is likely that this plain reading is the reading  
            endorsed by the courts.







          AB 438 (Chiu)                                           Page 4  
          of ?
          
            
            However, there is a possible alternative reading to the  
            statute. Since both DIR and DWC can require forms and notices  
            to be given by employers to injured workers, the concern is  
            that the employer-provided forms and notices required by DIR  
            and DWC must also comply with the Dymally-Alatorre Act. As  
            this would be outside of the historical scope of the Act, it  
            is unlikely to be upheld by the courts. However, litigating  
            these dueling interpretations could generate a significant  
            amount of mischief and unnecessary cost. 

             The author may wish to clarify this point through alternative  
            language, intent language, and/or a Letter to the Journal.  

             2)   Phased-In Implementation and the Modernization of  
               Workers' Compensation

            Currently, California's workers' compensation system is a  
            scandalously paper-bound system. There are, however, nascent  
            efforts to move the system into the information age. One of  
            the most important initiatives is in the area of creating an  
            electronic format for seeking review through the Independent  
            Medical Review (IMR) process, which could speed up medical  
            decisions and improve system outcomes. Allowing form  
            translation efforts to run along the same track as form  
            digitization may allow DIR to comply in an affordable way and  
            encourage the Department to continue its modernization  
            efforts.

             The author may wish to include a 3 year phase-in on the impact  
            of AB 438 in order to complement modernization efforts.  

             3)   Improving Employer Knowledge of Injured Worker Language  
               Needs

            The DWC 1 Form is the form that is used by injured workers to  
            begin the workers' compensation claim process. This form is  
            currently being redesigned, presenting opportunities for  
            better communicating what the language needs of the injured  
            worker are, which the employer or insurer may or may not be  
            aware.  The author may wish to require a check box on the DWC  
            form where the injured worker can note that he or she has  
            additional language needs.  

          3.  Proponent Arguments  :







          AB 438 (Chiu)                                           Page 5  
          of ?
          
            
            Proponents argue that, even for well educated workers, the  
            California's workers' compensation system can be challenging  
            to comprehend. Proponents note that, when a worker is hurt the  
            system can seem like it is set up not to work, and this  
            problem is only exasperated when forms and information on the  
            Internet are not in their native language. Proponents note  
            that, though legislation from 1972 requires all governmental  
            agencies to translate forms and information, currently DWC  
            only translates forms into English and Spanish. Proponents  
            believe this AB 438 will encourage both DIR and DWC to  
            translate forms and information into additional languages when  
            required by law.

          4.  Opponent Arguments  :

            None on file.



          5.  Prior Legislation  :

            SB 863 (DeLeon), Statutes of 2011, Chapter 363, was a holistic  
            workers' compensation reform that, among other things,  
            strengthened the certification requirements for interpreters  
            in the workers' compensation system.


          SUPPORT
          
          California Immigrant Policy Center
          California Workers' Compensation Interpreters Association
          Californian Applicants' Attorney Association
          Organization of SMUD Employees
          San Bernardino Public Employees Association
          San Diego County Court Employees Association
          San Luis Obispo County Employees Association
          


          OPPOSITION
          

          None received. 








          AB 438 (Chiu)                                           Page 6  
          of ?
          



                                      -- END --