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 --