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. &  








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          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  







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          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  







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          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  







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            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  







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          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  







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          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;  







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          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)

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