BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 438| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 438 Author: Chiu (D), et al. Amended: 6/1/15 in Senate Vote: 21 SENATE LABOR & IND. REL. COMMITTEE: 5-0, 6/24/15 AYES: Mendoza, Stone, Jackson, Leno, Mitchell SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 ASSEMBLY FLOOR: 60-19, 5/14/15 - See last page for vote SUBJECT: State government: workers' compensation: bilingual services SOURCE: Author DIGEST: This bill promotes 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: 1)Creates the Dymally-Alatorre Bilingual Services Act, which requires that: AB 438 Page 2 a) 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) b) 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 shall be left to the discretion of the local agency. (Government Code §7295) 2)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. a) The written materials require the furnishing of information from an individual or provide that individual with information. b) The information affects the individual's rights, duties, or privileges with regard to that agency's services or benefits. c) 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) 3)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 five percent or more of the people served by the statewide or any local office AB 438 Page 3 or facility of a state agency. (Government Code §7296.2) This bill requires that workers' compensation forms and notices required to be given to employees by the DIRor the DWC must comply with the Dymally-Alatorre Bilingual Services Act. Background Need for this bill. 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 two 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 eight languages available to users of its workers' compensation system. Thus, this bill is aimed at expanding access to DWC's information by expanding the number of languages DWC is required to use. Comments According to the Senate Labor and Industrial Relations Committee: Currently, AB 438 is open to dueling interpretations. The plain reading of this statute is that, if the DIR or DWC 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 AB 438 Page 4 that this plain reading is the reading endorsed by the courts. 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No SUPPORT: (Verified6/24/15) California Applicants' Attorneys Association California Immigrant Policy Center California Workers' Compensation Interpreters Association Organization of SMUD Employees San Bernardino Public Employees Association San Diego County Court Employees Association San Luis Obispo County Employees Association OPPOSITION: (Verified6/24/15) California Joint Powers Authorities ARGUMENTS IN SUPPORT: 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 AB 438 will encourage both DIR and DWC to AB 438 Page 5 translate forms and information into additional languages when required by law. ARGUMENTS IN OPPOSITION: Opponents argue that AB 438 could bleed into the workers' compensation claims process, requiring the translation of forms that do not need to be translated. Specifically, opponents note that the DWC and DIR require many forms for the administration of workers' compensation claims, but not all of those forms are directed at the injured worker. Opponents argue that translating and transmitting a multitude of forms in several languages would complicate the claims administration and create unnecessary costs. Finally, opponents note that additional administrative requirements could lead to fees and penalties due to the vague requirements of AB 438, which would neither benefit the injured worker nor address the concerns raised by this bill. ASSEMBLY FLOOR: 60-19, 5/14/15 AYES: Achadjian, Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Holden, Irwin, Jones-Sawyer, Lackey, Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Weber, Wilk, Williams, Wood, Atkins NOES: Travis Allen, Baker, Bigelow, Brough, Chávez, Dahle, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim, Mathis, Mayes, Melendez, Obernolte, Patterson, Wagner, Waldron NO VOTE RECORDED: Roger Hernández Prepared by:Gideon Baum / L. & I.R. / (916) 651-1556 7/8/15 11:54:49 **** END **** AB 438 Page 6