BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 1383 (Jones) Version: June 19, 2015 Hearing Date: July 14, 2015 Fiscal: Yes Urgency: No TMW SUBJECT Veterans preferences: voluntary policy DESCRIPTION This bill would enact the Voluntary Veterans' Preference Employment Policy Act and authorize a private employer to establish a veteran's preference employment policy. BACKGROUND Various statutes, such as the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act, 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, national origin, religion, and disability. Over time, these statutes have been amended to include other characteristics such as medical conditions, marital status, and sexual orientation. Also over time, other statutes were amended to reflect the state's public policy against discrimination in all forms. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) provides employment discrimination protection for a person who is an active duty military or a veteran and has an obligation to perform service in a uniformed service (United States Armed Forces, United States Armed Forces Reserve, the United States National Guard). (38 U.S.C. Sec. 4311.) The California Military and Veterans Code incorporates this discrimination protection, and further extends it to members or veterans of the California National Guard. (Mil. & AB 1383 (Jones) Page 2 of ? Vet. Code Sec. 394.) AB 556 (Salas, Chapter 691, Statutes of 2013) incorporated into FEHA protection from discrimination and retaliation for military employees and veterans. This bill seeks to further protect veterans from employment discrimination, as well as protect private employers who give veteran preference in employment decisions, by enacting the Voluntary Veterans' Preference Employment Policy Act. CHANGES TO EXISTING LAW Existing federal law , the Uniformed Services Employment and Reemployment Rights Act (USERRA), prohibits discrimination and retaliation against active duty military and veterans on the basis of the person's military membership, application for membership, performance of service, application for service, or obligation. (38 U.S.C. Sec. 4311.) Existing federal law prohibits an employer's use of the employee's military membership, performance of service, application for service, or obligation as a motivating factor as cause for an adverse employment decision against the employee. (38 U.S.C. Sec. 4311.) Existing federal law , the USERRA, provides that any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to specified reemployment rights and benefits and other employment benefits of this chapter. (38 U.S.C. Sec. 4312.) Existing law prohibits discrimination by a person, public entity, or official against any officer, warrant officer, or enlisted member of the military or naval forces because of that membership, and prohibits prejudice or injury by any person, employer, or officer or agent of any corporation, company, or firm with respect to that member's employment, position or status or be denied or disqualified for employment by virtue of the membership. (Mil. & Vet. Code Sec. 394.) Existing law prohibits an employer or officer or agent of any corporation, company, or firm, or other person, from: (1) discharging any person from employment because of the performance of any ordered military duty or training or by reason of being an officer, warrant officer, or enlisted member of the military or naval forces of this state; (2) preventing AB 1383 (Jones) Page 3 of ? that person from performing any military service or from attending any military encampment or place of drill or instruction he or she may be called upon to perform or attend by proper authority; (3) using prejudice or harm against an employee in any manner in his or her employment, position, or status by reason of the employee's performance of military service or duty or attendance at military encampments or places of drill or instruction; or (4) dissuading, preventing, or stopping any person from enlistment or accepting a warrant or commission in the California National Guard or Naval Militia by threat or injury to the employee in respect to his or her employment, position, status, trade, or business because of enlistment or acceptance of a warrant or commission. (Mil. & Vet. Code Sec. 394.) Existing law prohibits a private employer or officer or agent of any corporation, company, or firm, or other person, from restricting or terminating any collateral benefit for employees by reason of an employee's temporary incapacitation (any period of incapacitation of 52 weeks or less) incident to duty in the National Guard or Naval Militia. (Mil. & Vet. Code Sec. 394.) Existing law provides that a violation of the above state employment protections is a misdemeanor, and that any person violating any of these provisions is liable for actual damages and reasonable attorney's fees incurred by the injured party. (Mil. & Vet. Code Sec. 394.) Existing law provides that a covered employee has an absolute right to be restored to the former office or position and status formerly had by him or her in the same locality and in the same office, board, commission, agency, or institution of the public agency upon the termination of temporary military duty. If the office or position has been eliminated during the employee's absence, the employee must be reinstated to a position of like seniority, status, and pay if a position exists, or if no position exists, the employee will have the same rights and privileges that he or she would have had if he or she had occupied the position when it ceased to exist and had not taken temporary military leave of absence. (Mil. & Vet. Code Sec. 395.) Existing law , the Fair Employment and Housing Act (FEHA), prohibits discrimination in housing and employment on the basis of various characteristics, including military and veteran status, defined as a member or veteran of the United States AB 1383 (Jones) Page 4 of ? Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard. (Gov. Code Sec. 12920 et seq.) Existing law provides that gender discrimination protection under FEHA does not affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans. (Gov. Code Sec. 12920(a)(4).) This bill would expand the employer's right to give special consideration to all veterans and authorize the employer to use veteran status as a factor in hiring decisions if the employer maintains a veterans' preference employment policy, as specified. This bill would enact the Voluntary Veterans' Preference Employment Policy Act and authorize a private employer to establish and maintain a written veterans' preference employment policy. This bill would authorize that employer to require that a veteran submit a DD 214 form to be eligible for the preference. (A DD 214 is a Certificate of Release or Discharge from Active Duty issued by the United States Department of Defense upon a military service member's retirement, separation, or discharge from active-duty military.) This bill would specify that the granting of a veterans' preference, in and of itself, would be deemed to not violate any local or state equal employment opportunity law or regulation, including, but not limited to, FEHA. This bill would require the Department of Veterans Affairs to assist any private employer in determining if an applicant is a veteran to the extent permitted by law. This bill would provide the following definitions: "DD 214" means United States Department of Defense Form 214 or a similarly effective form issued by that department relating to separation from military service; "private employer" means a business entity in the private sector of this state with one or more employees; "veteran" means a person who served on active duty in the AB 1383 (Jones) Page 5 of ? Armed Forces of the United States who was discharged or released with an honorable discharge; and "veterans' preference employment policy" means a private employer's voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. This bill also would make technical and conforming changes to various code sections and contains double-jointing language to address a chaptering out issue with AB 987 (Levine, 2015). COMMENT 1. Stated need for the bill The author writes: Currently[,] California already has a veteran's preference exception in Gov[ernment] Code 12940(a)(4). The problem with the existing law is that it is arguably outdated and narrow. In its current state, this veteran's preference exception only applies to Vietnam War era veterans and only immunizes employers from gender discrimination claims. This is problematic because the amount of Vietnam War era veterans who are looking to utilize this preference exception is steadily declining due to the fact that many of these veterans are no longer searching for employment. Also[,] it omits any veteran that did not serve in the Vietnam War era and clearly limits the amount of people who can use this veteran's preference. This bill corrects an outdated law, which only allows for a business to create a preference for Vietnam War era veterans. While the original legislation was relevant when first adopted, the existing law is now lacking because it only provides preference to Vietnam War era veterans, and does not encompass all veterans. 2. Establishing Veterans preference protection Existing law provides that sex discrimination protections provided under the Fair Employment and Housing Act (FEHA) do not affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam era veterans. (Gov. Code Sec. 12940(a)(4).) This bill would provide that all of the discrimination protections provided under FEHA would not affect a private employer's right AB 1383 (Jones) Page 6 of ? to select a veteran over another applicant. This bill would also expand an employer's right to give special consideration to all veterans and authorize the employer to use veteran status as a factor in hiring decisions if the employer maintains a veterans' preference employment policy, as specified. The author notes that the National Conference of State Legislatures (NCSL) provides a list of the following states that have recently enacted veteran's preference laws similar to those in this bill: Arkansas, Florida, Idaho, Iowa, Maine, Massachusetts, Minnesota, North Dakota, South Carolina, Virginia, and Washington. Also, similar measures are currently pending in Alaska, Indiana, Montana, Nebraska, New Hampshire, Oklahoma, South Dakota, Tennessee, Texas, and Utah. The author argues that existing FEHA protections are outdated and do not properly provide for hiring preference to all veterans, not just Vietnam-era veterans. The Society for Human Resource Management (SHRM), in support, states that this bill would "establish a voluntary preference for employers to grant a veteran in hiring. This voluntary preference would expand the veteran's preference exception to all U.S. veterans, regardless of when they served. . . . [Human Resource] professionals are keenly aware of the difficulty some veterans face when searching for employment and SHRM and our affiliate, the California State Council of SHRM (CalSHRM), (and many businesses and veteran groups) have been collaborating to assist returning veterans gain employment in our state. We believe that allowing an employer to exercise a voluntary hiring preference exception to all veterans is one small way we can thank them for their service to our country." (Emphasis in original.) The FEHA provision authorizing veteran preference over gender, and Vietnam-era veteran preference over all other veterans, was established in 1981. Although FEHA has been amended numerous times in the past 34 years, this veteran preference subdivision was not updated other than to make a minor revision to change "Vietnam era" to "Vietnam-era." (AB 1814 (Buchanan, Chapter 130, Statutes of 2010).) Accordingly, this bill seeks to update veteran preference under FEHA to encompass all of the veterans of the U.S. that have served since the veteran preference protection was enacted, as well those who serve the country in the future. Notably, every other FEHA characteristic protected from discrimination (race, religious creed, color, national AB 1383 (Jones) Page 7 of ? origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, and sexual orientation) is a characteristic that a veteran may have - no other characteristic encompasses all of the other categories. Arguably, it is appropriate, as a matter of public policy, to provide an overriding veteran employment preference for individuals who have served the country. Further, this bill provides an appropriate balance for other applicants or employees that may be affected when a veteran is hired over the applicant or employee. This would require the private employer, who opts to provide veteran preference in hiring decisions, to establish and maintain a written veterans' preference employment policy. In this way, other applicants or employees would be made aware of the employer's hiring policy. In the absence of such written policy, the employer may be liable for discrimination against another employee or applicant. 3. Author's amendments To address concern that veteran's preference policy created under this bill could be used by an employer as a pretext in order to discriminate against the other protected classes under FEHA, the author offers the following amendments in Committee to prohibit the employer from using the policy to discriminate against the other protected classes: Author's amendments : 1. On page 4, in line 5, after "12958)." insert "A veterans' preference policy shall not be established or applied for the purpose of discriminating against an employment applicant on the basis of any protected classification in this subdivision." 2. On page 17, between lines 33 and 34, insert "(e) Nothing in this section shall be construed to authorize the establishment or use of a veterans' preference employment policy for the purpose of discriminating against an employment applicant on the basis of any protected classification in subdivision (a) of Section 12940." Support : American Legion-Department of California; AB 1383 (Jones) Page 8 of ? AMVETS-Department of California; California Association of County Veterans Service Officers; California State Commanders Veterans Council; Military Officers Association of America, California Council of Chapters; Society for Human Resource Management; VFW-Department of California; Vietnam Veterans of America, California State Council Opposition : None Known HISTORY Source : California State Council of the Society for Human Resource Management Related Pending Legislation : AB 987 (Levine, 2015) would make it an unlawful employment practice under the Fair Employment and Housing Act for an employer or other covered entity to retaliate or otherwise discriminate against a person who requests an accommodation for the person's religious belief or observance or for the person's known physical or mental disability, regardless of whether the request was granted. AB 987 is currently in the Senate Appropriations Committee. Prior Legislation : AB 556 (Salas, Chapter 691, Statutes of 2013) See Background. AB 1814 (Buchanan, Chapter 130, Statutes of 2010) See Comment 2. SB 36 (Baca, Chapter 201, Statutes of 1999) requires any city, county, or city and county, general law or chartered, when it has established a civil service system, to implement a veterans' preference system, or adopt a resolution identifying reasons that the local agency does not do so. SB 1150 (Fletcher and Burns, Chapter 123, Statutes of 1945) requires military veteran preference on civil service employment lists. Prior Vote : Assembly Floor (Ayes 77, Noes 0) Assembly Appropriations Committee (Ayes 17, Noes 0) Assembly Labor and Employment Committee (Ayes 7, Noes 0) ************** AB 1383 (Jones) Page 9 of ?