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
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|Author: |Chiu |
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|Version: |June 1, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Gideon Baum |
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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
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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?
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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.
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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 :
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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.
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