Amended in Assembly May 27, 2016

Amended in Assembly April 7, 2016

Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2879

Introduced by Assembly Member Mark Stone

(Coauthors: Assembly Members begin delete Chiu and end delete begin insert Chiu, Thurmond, and end insert 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 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 begin delete such a end delete begin insert that end insert 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 begin insert waiver end insert 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.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: 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. begin insert Section 394 of the Military and Veterans Code
(Section 394), which enacts in state law employment protections
that are very similar to USERRA, also prohibits discrimination
against service members because of their membership or service
in the military. Furthermore, Section 394 prohibits an employer
from terminating or prejudicing in any manner a person’s
employment because of his or her duties or attendance at military
places of drill or instruction for the California National Guard. end insert

begin delete

(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.

end delete begin insert

(b) It is the policy of the State of California, through key
protections in Section 394 and the California Fair Employment
and Housing Act (Part 2.8 (commencing with Section 12900) of
Division 3 of Title 2 of the Government Code), that employers
shall not discriminate against an employee or job applicant on
the basis of military and veteran status, and furthermore, that
employers are prohibited from making any non-job-related inquiry
of an employee’s or applicant’s military and veteran status, except
in order to identify members of the military or veterans for the
purpose of awarding a veteran’s preference as permitted by law.

end insert

(c) Because of the importance of these employment protections
for the well-being of service members, it is begin insert also end insert 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.

begin insert

(d) Nevertheless, service members and reserve members in
California have experienced wrongful termination or
discrimination in the workplace, in violation of protections under
USERRA and Section 394, such as termination when they informed
their employers of their need to take time off from work in order
to carry out their military reserve duties. Some of these service
members have been required to waive their procedural rights
under USERRA and Section 394 as a condition of employment.

end insert begin delete

(d)

end delete

begin insert (e) end insert  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.

begin delete

(e)

end delete

begin insert (f) end insert  This act shall be known, and may be cited, as the Service
Member Employment Protection Act.

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
begin insert California end insert 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
begin delete code, end delete begin insert section, end insert 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.