BILL ANALYSIS                                                                                                                                                                                                    Ó






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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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