BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 438|
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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:
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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
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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 DIR or 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
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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
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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
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