BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1383 (Jones)
Version: June 13, 2016
Hearing Date: June 21, 2016
Fiscal: Yes
Urgency: No
ME
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 veterans' 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. &
Vet. Code Sec. 394.)
AB 556 (Salas, Chap. 691, Stats. of 2013) incorporated into FEHA
protection from discrimination and retaliation for military
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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
that person from performing any military service or from
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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
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status, defined as a member or veteran of the United States
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, and makes clear that a veterans' preference
employment policy shall not be established or applied for the
purpose of discriminating against an employment applicant on the
basis of any protected classification.
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, which shall be applied uniformly to hiring decisions.
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
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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
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 provides that nothing in Voluntary Veteran's
Preference Employment Policy Act 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 under
FEHA.
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
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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
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 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
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"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
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.
Moreover, 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 bill contains provisions that clearly
establish that:
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; and
nothing in the bill 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.
Support : American Legion-Department of California;
AMVETS-Department of California; California Association of
County Veterans Service Officers; California State Commanders
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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 : None Known
Prior Legislation :
AB 987 (Levine, Chapter 122, Statutes of 2015) makes it an
unlawful employment practice for an employer or other covered
entity to retaliate or otherwise discriminate against a person
for requesting an accommodation for physical or mental
disability or religious belief or observance, regardless of
whether the request was granted.
AB 556 (Salas, Ch. 691, Stats. 2013) See Background.
AB 1814 (Buchanan, Ch. 130, Stats. 2010) See Comment 2.
SB 36 (Baca, Ch. 201, Stats. 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, Ch. 123, Stats. 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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