BILL NUMBER: AB 2879	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 7, 2016
	AMENDED IN ASSEMBLY  APRIL 5, 2016

INTRODUCED BY   Assembly Member Mark Stone
   (Coauthors: Assembly Members  Chiu  
  and Maienschein   Chiu   and
Ting  )

                        FEBRUARY 25, 2016

   An act to amend Section 394 of the Military and Veterans Code,
relating to service members.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2879, as amended, Mark Stone. Service  members.
  Member Employment Protection Act. 
   Existing law prohibits a person from discriminating against a
member of the military forces because of his or her membership or
service, as prescribed. Existing law makes a violation of those
provisions a crime. Existing law also provides civil remedies for
violations of those provisions.
   This bill would prohibit a person from requiring a waiver of the
protections afforded under those provisions as a condition of
employment, including the right to file and pursue a civil action or
complaint, as specified. The bill would prohibit a person from
retaliating against a person who refuses to waive his or her rights
under those provisions, as prescribed. The bill would require any
waiver of the protections afforded under those provisions to be
knowing and voluntary, in writing, and expressly not made as a
condition of employment, as specified. The bill would require a
person seeking to enforce such a waiver to have the burden of proving
that the waiver was knowing and voluntary and not made as a
condition of employment. The bill would apply its provisions to any
agreement entered into on or after January 1, 2017, including an
agreement that requires private arbitration.  A violation of
these provisions would not constitute a crime.  The bill would
include a severability clause. 
   Because a violation of those provisions would constitute a crime,
this bill would impose a state-mandated local program. 

   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason. 
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  no  . State-mandated local program:  yes
  no  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    The Legislature finds and declares all
of the following:  
   (a) Existing federal law and state law recognizes the need to
protect military service members from discrimination in employment.
Under the federal Uniformed Services Employment and Reemployment
Rights Act (USERRA), an employer may not deny initial employment,
reemployment, retention in employment, promotion, or any employment
benefits based on an employee's military service.  
   (b) In California, key protections in the Military and Veterans
Code and the Fair Employment and Housing Act strictly prohibit
discrimination on the basis of military and veteran status, and
further prohibit any non-job-related inquiry of an employee or
applicant's military and veteran status except that employers may
identify members of the military or veterans for the purpose of
awarding a veteran's preference as permitted by law.  
   (c) Because of the importance of these employment protections for
the well-being of service members, it is the policy of the State of
California to ensure that all service members have the full benefit
of the rights, penalties, remedies, forums, and procedures
established to protect service members from discrimination in
employment and that service members not be deprived of those rights,
penalties, remedies, forums, or procedures through the use of
involuntary or coerced waivers.  
   (d) Therefore, it is the purpose of this act to ensure that a
contract to waive any of the rights, penalties, remedies, forums, or
procedures under Section 394 of the Military and Veterans Code,
including any provision that has the effect of limiting the full
application or enforcement of any right, penalty, remedy, forum, or
procedure available under this section, is a matter of voluntary
consent, not coercion.  
   (e) This act shall be known, and may be cited, as the Service
Member Employment Protection Act. 
   SECTION 1.   SEC. 2.   Section 394 of
the Military and Veterans Code is amended to read:
   394.  (a) No person shall discriminate against any officer,
warrant officer, or enlisted member of the military or naval forces
of the state or of the United States because of that membership. No
member of the military forces shall be prejudiced or injured 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 membership
or service in the military forces of this state or of the United
States.
   (b) No officer or employee of the state, or of any county, city
and county, municipal corporation, or district shall discriminate
against any officer, warrant officer, or enlisted member of the
military or naval forces of the state or of the United States because
of that membership. No member of the military forces shall be
prejudiced or injured by any officer or employee of the state, or of
any county, city and county, municipal corporation, or district with
respect to that member's employment, appointment, position, or status
or be denied or disqualified for or discharged from that employment
or position by virtue of membership or service in the military forces
of this state or of the United States.
   (c) No person shall prohibit or refuse entrance to any officer or
enlisted member of the Army or Navy of the United States or of the
military or naval forces of this state into any public entertainment
or place of amusement or into any of the places described in Sections
51 and 52 of the Civil Code because that member wears the uniform of
the organization to which he or she belongs.
   (d) No employer or officer or agent of any corporation, company,
or firm, or other person, shall discharge 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, or hinder or prevent
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;
prejudice or harm him or her in any manner in his or her employment,
position, or status by reason of performance of military service or
duty or attendance at military encampments or places of drill or
instruction; or dissuade, prevent, or stop any person from enlistment
or accepting a warrant or commission in the California National
Guard or Naval Militia by threat or injury to him or her in respect
to his or her employment, position, status, trade, or business
because of enlistment or acceptance of a warrant or commission.
   (e) (1) No private employer or officer or agent of any
corporation, company, or firm, or other person, shall restrict or
terminate any collateral benefit for employees by reason of an
employee's temporary incapacitation incident to duty in the National
Guard or Naval Militia. As used in this subdivision, "temporary
incapacitation" means any period of incapacitation of 52 weeks or
less.
   (2) As used in this subdivision, "benefit" includes, but is not
limited to, health care which may be continued at the employee's
expense, life insurance, disability insurance, and seniority status.
   (f) No person who provides lending or financing shall discriminate
against any person with respect to the terms of a loan or financing,
including, but not limited to, the finance charge, based on that
person's membership in the military or naval forces of this state or
of the United States. With respect to any loan or credit transaction
covered by Section 670 of Public Law 109-364 and Section 232 of Title
32 of the Code of Federal Regulations, as published on August 31,
2007, in Volume 72 of the Federal Register, a person that does not
market or extend those transactions to covered borrowers shall not be
in violation of this section. For purposes of this section, a
covered borrower has the same meaning as provided for in Section 232
of Title 32 of the Code of Federal Regulations, as published on
August 31, 2007, in Volume 72 of the Federal Register.
   (g) (1) A person shall not require another person to waive any
legal right, penalty, remedy, forum, or procedure for a violation of
this section, as a condition of employment, including the right to
file and pursue a civil action or complaint with, or otherwise
notify, the Labor Commissioner, state agency, other public
prosecutor, law enforcement agency, or any court or other
governmental entity.
   (2) A person shall not threaten, retaliate, or discriminate
against another person on the basis that the other person refuses to
waive any legal right, penalty, remedy, forum, or procedure for a
violation of this section, including the right to file and pursue a
civil action or complaint with, or otherwise notify, the Labor
Commissioner, state agency, other public prosecutor, law enforcement
agency, or any court or other governmental entity.
   (3) Except for any legal right, penalty, forum, or procedure that
state or federal law prohibits from being waived, any waiver of any
legal right, penalty, remedy, forum, or procedure for a violation of
this section, including the right to file and pursue a civil action
or complaint with, or otherwise notify, the Labor Commissioner, state
agency, other public prosecutor, law enforcement agency, or any
court or other governmental entity shall be knowing and voluntary,
and in writing, and expressly not made as a condition of employment.
   (4) Any waiver of any legal right, penalty, remedy, forum, or
procedure for a violation of this section that is required as a
condition of employment shall be deemed involuntary, unconscionable,
against public policy, and unenforceable. Nothing in this subdivision
shall affect the enforceability or validity of any other provision
of the contract.
   (5) Any person who seeks to enforce a waiver of any legal right,
penalty, remedy, forum, or procedure for a violation of this section
shall have the burden of proving that the waiver was knowing and
voluntary and not made as a condition of employment.
   (6) This section shall apply to any agreement to waive any legal
right, penalty, remedy, forum, or procedure for a violation of this
code, including an agreement to accept private arbitration, entered
into, altered, modified, renewed, or extended on or after January 1,
2017.
   (h) Any person violating  subdivision (a), (b), (c), (d), (e),
or (f) of  this section is guilty of a misdemeanor. In addition
to injunctive relief and any other available remedies, any person
violating any of the provisions of this section shall be liable for
actual damages and reasonable attorney's fees incurred by the injured
party.
   (i) The remedies provided for in this section are not intended to
be exclusive but are in addition to the remedies provided for in
other laws, including Sections 51 and 52 of the Civil Code.
   (j) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application. 
  SEC. 2.    No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.