BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 488|
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THIRD READING
Bill No: AB 488
Author: Gonzalez (D)
Amended: 6/21/16 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-2, 6/14/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
ASSEMBLY FLOOR: 69-0, 1/15/16 - See last page for vote
SUBJECT: Employment discrimination
SOURCE: Disability Rights California
State Council on Developmental Disabilities
DIGEST: This bill eliminates the current exemption for any
individual employed under a special license in a nonprofit
sheltered workshop or rehabilitation facility from the Fair
Employment and Housing Act's (FEHA) definition of "employee,"
thus protecting those individuals from any form of employment
discrimination on the basis of race, religious creed, physical
disability, mental disability, sex, age, and sexual orientation,
among other things. This bill also provides, however, that
nothing under FEHA relating to discrimination on account of
disability shall subject an employer to legal liability for
obtaining a specified license or paying an individual with a
physical or mental disability less than minimum wage pursuant to
a specified license from the Industrial Welfare Commission under
existing law.
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ANALYSIS:
Existing law:
1)Prohibits, as a matter of federal law, under Title VII of the
Civil Rights Act, discrimination and harassment of employees.
2)Provides, as a matter of federal law, Section 14(c) of the
federal Fair Labor Standards Act (FLSA), for the employment of
certain individuals at wage rates below the minimum wage.
Under this provision, individuals whose earnings or productive
capacity is impaired by physical or mental disability for the
work to be performed, including those related to age or
injury, may be paid less than the federal minimum wage.
Certificates issued by the Department of Labor to the employer
are required for the employer to pay the special minimum wage.
3)Authorizes, under Labor Code Sections 1191 and 1191.5,
mentally or physically handicapped employees (and nonprofit
sheltered workshops and rehabilitation facilities employing
them) to be issued a license by the Industrial Welfare
Commission authorizing a special subminimum wage.
4)Prohibits, under the Fair Employment and Housing Act (FEHA),
as a matter of public policy, discrimination and harassment in
employment on the basis of race, religious creed, color,
national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status.
5)Provides, under FEHA, that it is an unlawful employment
practice, unless based upon a bona fide occupational
qualification, or, except where based upon applicable security
regulations, as specified, for an employer to refuse to hire
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or employ a person or to refuse to select a person for a
training program leading to employment, or to bar or to
discharge a person from employment or from a training program
leading to employment, or to discriminate against a person in
compensation or in terms, conditions, or privileges of
employment, because of any of the above-listed protected
bases.
6)Provides further under FEHA, however, that such disability
discrimination protections do not prohibit an employer from
refusing to hire or discharging an employee with a physical or
mental disability, or subject an employer to any legal
liability resulting from the refusal to employ or the
discharge of an employee with a physical or mental disability,
where the employee, because of his or her physical or mental
disability, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those
duties in a manner that would not endanger his or her health
or safety or the health or safety of others even with
reasonable accommodations.
7)Prohibits, under FEHA, an employer or other entity to fail to
make reasonable accommodation for the known physical or mental
disability of an applicant or employee; however, an employer
is not required to provide accommodation that is demonstrated
by the employer or other covered entity to produce undue
hardship, as defined.
8)Provides, for purposes of FEHA, that the term "employee" does
not include any individual employed by his or her parents,
spouse, or child, or any individual employed under a special
license in a nonprofit sheltered workshop or rehabilitation
facility.
This bill:
1)Repeals the language exempting an individual paid under a
special license in a sheltered workshop or rehabilitation
facility from the term "employee" under FEHA.
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2)Provides that nothing under FEHA relating to discrimination on
account of disability shall subject an employer to legal
liability for obtaining a specified license or paying an
individual with a physical or mental disability less than
minimum wage pursuant to specified laws, above.
Background
California law reflects a strong public policy protecting
individuals against discrimination under numerous statutes,
covering a variety of contexts. FEHA and the Unruh Civil Rights
Act, for example, prohibit discrimination in employment,
housing, public accommodation, and services provided by business
establishments on the basis of specified personal
characteristics, such as sex, race, color, religion, ancestry,
national origin, age, disability, medical condition, genetic
information, marital status, or sexual orientation. (See Gov.
Code Sec. 12920 et seq. for FEHA; Civ. Code Sec. 51 for Unruh
Civil Rights Act). Others still, prohibit discrimination in
public schools and in other state-funded programs or activities.
(See Educational Equity at Ed. Code Sec. 200 et seq. and Equity
in Higher Education Act at Ed. Code Sec. 66270 et seq.; see also
Gov. Code Section 11135 et seq.)
Of particular import to this bill, FEHA not only protects an
employee from discrimination on protected bases, but it also
entitles the employee to certain accommodations under the law
based on, for example, their religious creed or physical or
mental disability. Further, FEHA generally protects an employee
against retaliation by the employer if the employee has opposed
any of the employer's discriminatory practices or because the
employee has filed a complaint, testified, or assisted in a FEHA
proceeding against the employer. That being said, under current
law, FEHA exempts from its definition of "employee" any person
who is employed under a special license in a nonprofit sheltered
workshop or rehabilitation facility. Thus, such individuals
employed by a nonprofit sheltered workshop or rehabilitation
facility, could presumably be discriminated against on the basis
of their sex, religion, race, marital status, national origin,
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and more, without any protections under the law and without any
consequence to the employer who would otherwise be held in
violation of FEHA with respect to any other employees.
Accordingly, this bill eliminates the current exemption from the
definition of employee for any "individual employed under a
special license in a nonprofit sheltered workshop or
rehabilitation facility." At the same time, this bill ensures
that an employer who obtains a specified license or pays an
individual less than minimum wage pursuant to a specified
license from the California Industrial Welfare Commission is not
legally liable for doing so under the anti-disability
discrimination provisions of FEHA.
Comments
As stated by the author:
The Legislature has made great strides in expanding the
protections and opportunities for most Californians under the
Fair Employment and Housing Act. From extending the bases of
potential discrimination to include age, gender, and religious
dress, to extending the definition of employee to include
unpaid interns and volunteers, previous efforts have sought to
ensure that all California workers are fully protected in the
workplace.
However, we have failed individuals with disabilities working
in sheltered workshops and rehabilitation centers by not
addressing the exemption of these employers from these laws.
This has left individuals with disabilities working in these
settings without the same recourse as others, should a case of
discrimination or harassment arise in their workplace. While
we recognize the need for certain nuances regarding the
compensation paid to these individuals and hiring practices of
the sheltered workshops and rehabilitation centers, it is
simply unacceptable to leave this population of workers
without these basic workplace protections. It is time to get
rid of this exemption and protect all California workers as
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equally as possible.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/22/16)
Disability Rights California (co-source)
State Council on Developmental Disabilities (co-source)
Arc and United Cerebral Palsy California Collaboration
California Foundation for Independent Living Centers
California Labor Federation
Disability Rights Education and Defense Fund
SEIU California
Special Needs Network
OPPOSITION: (Verified6/22/16)
The Alliance Supporting People with Intellectual and
Developmental Disabilities
California Disability Services Association
Pleasantview Industries
San Gabriel Valley Training Center
VIP, Inc.
Two individuals
ARGUMENTS IN SUPPORT: Disability Rights California,
co-sponsor of this bill, writes "[c]urrently, under state law,
'employee' does not include any individual employed by a
sheltered workshop or rehabilitation facility. This leaves
people with disabilities employed in these settings no recourse
for discrimination by their employer. [ . . . This ] bill
would change the Government Code so that individuals with
disabilities who are in sheltered work are considered
'employees' and are provided the same protections as other
employees under California's Federal Employment and Housing Act
(FEHA). Reform is needed to strengthen rights and protections
for sheltered workshop employees who work in highly-restrictive
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environments and currently are not afforded the same protections
against discrimination as other employees."
ARGUMENTS IN OPPOSITION: California Disability Services
Association (CDSA) writes an oppose unless amended letter with
respect to several issues, stating that "[b]ecause of some of
the most basic requirements of FEHA, the process for placement
and oversight of individuals in sheltered workshops, rehab
facilities and day programs would be severely compromised" under
the current version of the bill. While CDSA supports "making
the law clear that ALL employees are entitled to FEHA protection
from discrimination and harassment" they believe the bill
imposes liability for non-discriminatory behavior that is
essential to the employment arrangements for individuals covered
by the bill. CDSA highlights specific areas of concern that
demonstrate several "fundamental problems with the current
version of the bill" as follows:
FEHA prohibits employers from making any inquiry, either
pre-employment or subsequent to hiring, as to whether an
applicant or employee has a disability, or the nature or
severity of that disability. It's impossible for a
workshop, facility, or program to function if it cannot
even inquire as to the disability of an employee, or to
utilize that information during the course of employment to
make necessary adjustments to the employment arrangements.
FEHA requires employers to engage in a timely, good
faith, interactive process with an employee or applicant to
determine reasonable accommodations. This bill fails to
allow any inquiry into an employee's disability, does not
clarify which party is the "employer," and does not
contemplate the process by which an individual who cannot
express their needs can be accommodated. One of the most
important aspects of these placements is the role of the
service provider responsible for the individual serves in
working with outside entities to create employment
opportunities for the individuals being placed. [On] its
face, FEHA's "interactive" requirements seem to prevent the
service provider from serving that role.
Since "day programs are not addressed in existing labor
laws, their express addition to FEHA can be read to create
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an employer-employee relationship where one does not
currently exist. [ . . . ] In addition, since FEHA makes
individuals with various levels of disability personally
liable for acts of harassment, converting the day program
setting into an employment setting will inevitably promote
litigation between day program participants. These program
participants do have causes of action now for these types
of incidents, but most are resolved by the day program
providers by working with the individuals and families. [ .
. . ]
CDSA urges the author to consider amending the bill "to clarify
that individuals in these settings are protected from
discrimination and harassment, while allowing for a
comprehensive review of the potential unintended consequences"
(by stakeholders convened by the Director of the Department of
Fair Employment and Housing).
ASSEMBLY FLOOR: 69-0, 1/15/16
AYES: Achadjian, Alejo, Baker, Bigelow, Bonilla, Bonta, Brough,
Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu,
Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier,
Beth Gaines, Gallagher, Cristina Garcia, Gatto, Gipson,
Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger
Hernández, Irwin, Jones, Kim, Lackey, Levine, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk,
Rendon, Rodriguez, Salas, Santiago, Steinorth, Mark Stone,
Thurmond, Ting, Wagner, Waldron, Weber, Williams, Wood, Atkins
NO VOTE RECORDED: Travis Allen, Bloom, Chávez, Eduardo Garcia,
Gomez, Holden, Jones-Sawyer, Linder, Ridley-Thomas, Wilk
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
6/22/16 15:14:50
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