BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: June 24, 2009 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:No
Urgency: No
Bill No: AB 1093
Author: Yamada
Version: June 17, 2009
SUBJECT
Workers' Compensation.
KEY ISSUE
Should language prohibiting various forms of discrimination in
the delivery of workers' compensation benefits be added to the
Labor Code?
PURPOSE
To bar the consideration of race, national origin, gender, sex,
genetic predisposition, and certain other factors in the
delivery of workers' compensation benefits.
ANALYSIS
Existing law:
a) Establishes a workers' compensation system that provides
benefits to an employee injured at work, irrespective of
fault. This system requires all employers to secure
payment of benefits by either securing the consent of the
Department of Industrial Relations to self insure or by
securing insurance against liability from an insurance
company duly authorized by the state.
b) Provides, as a matter of case law, that a death or
injury is not job-related if the employee is killed or
injured as a result of a personal motivation between a
third-party aggressor and the employee-victim.
c) Requires that no person in the State of California
shall, on the basis of race, national origin, ethnic group
identification, religion, age, sex, sexual orientation,
color, or disability, be unlawfully denied full and equal
access to the benefits of, or be unlawfully subjected to
discrimination under, any program or activity that is
conducted, operated, or administered by the state or by any
state agency, is funded directly by the state, or receives
any financial assistance from the state. [Government Code
11135]
This bill requires that, for purposes of determining whether to
grant or deny a workers' compensation claim, if an employee is
injured or killed by a 3rd party in the course of the employee's
employment, no personal relationship or personal connection
shall be deemed to exist if the 3rd party injured or killed the
employee solely because of the employee's sex, race, color,
religion, ancestry, national origin, marital status, or sexual
orientation.
COMMENTS
1. Need for this bill?
The main impetus for this bill was the recent case of Taneka
Talley's family and the denial of their workers' compensation
claim. Ms. Talley was murdered in March 2006 by a white
supremacist while she was opening a Dollar Tree store in
Fairfield. Dollar Tree's insurer, Specialty Risk Services,
argued that because Ms. Talley's murder was racially
motivated, and therefore personal, despite the fact she was
killed at the Dollar Tree store and would not have been killed
has she not been present at the store.
The underlying case law that motivated Dollar Tree was SCIF
v. WCAB (DeVargas) (1982) 133 Cal. App 3d 643) involved the
killing of two Mexican men in the bunkhouse of their employer.
The killer had met the two victims earlier, and discussed a
Hearing Date: June 24, 2009 AB 1093
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
sales transaction involving the victims' vehicle. While the
victims thought they were arranging a sale, the killer had
other ideas. Boasting to friends about how easy it would be
to "blow away Mexicans," the killer pretended to come to the
victims' bunkhouse to complete the sale. The Court of Appeal
ruled that the deaths were not job related, were based on a
prior relationship with the killer, and only coincidentally
occurred at the employer's bunkhouse.
However, the Court of Appeal found that "the racial motive
could cut off the causation between the employment and the
deaths", which at first blush seems to suggest that a racially
motivated killing could be considered personal, and therefore
non-compensable. While the prior personal, non-occupational
relationship between the victims and the perpetrator in
DeVargas would seem to suggest that the case was inapplicable
to the Taneka Talley murder or a similar case, the author of
AB 1093 believes this should be clarified in statute.
2. Double Referral to the Senate Judiciary Committee:
If AB 1093 is passed out of the Senate Labor Committee, it
will next be heard by the Senate Judiciary Committee.
3. Proponent Arguments :
Proponents argue that state law should be made abundantly
clear that a workplace death like Taneka Talley's is a
compensable claim. Proponents note that while Ms. Talley's
family was eventually paid death benefits, this was only after
significant public pressure was placed on Dollar Tree and its
insurance carrier, and there is no reason that a family should
rely on public shame to receive these benefits.
4. Opponent Arguments :
None received.
5. Current Legislation:
SB 145 (DeSaulnier), which also addressed the Taneka Talley
case, as well as other forms of discrimination in the delivery
Hearing Date: June 24, 2009 AB 1093
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
of workers' compensation benefits, was heard by this Committee
on March 25th. SB 145 is currently before the Assembly
Insurance Committee.
6. Prior Legislation :
SB 1115 (Migden) of 2008 would have barred the consideration
of race, national origin, gender, sex, genetic predisposition,
and certain other factors in the determination of an
apportionment of the causes of an industrial disability. It
was vetoed by the Governor.
SUPPORT
California Applicants' Attorneys Association
California Labor Federation
California Nurses Association/National Nurses Organizing
Committee
California State Employees Association
Glendale City Employees Association
Organization of SMUD Employees
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
OPPOSITION
None received.
* * *
Hearing Date: June 24, 2009 AB 1093
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations