BILL ANALYSIS
AB 2247
Page 1
Date of Hearing: May 5, 2010
ASSEMBLY COMMITTEE ON INSURANCE
Jose Solorio, Chair
AB 2247 (Niello) - As Amended: April 5, 2010
SUBJECT : Workers' compensation: local inmates
SUMMARY : Revises the workers' compensation benefits that may
be received by a city or county jail inmate who is injured on a
work assignment. Specifically, this bill provides that an
inmate of a city or county jail, industrial farm, or road camp
shall be entitled to the workers' compensation benefits for an
injury or death arising during the course of assigned
employment, subject to all of the following conditions:
a) The inmate was not injured as a result of an assault in
which the inmate was the initial aggressor, or as a result
of intentionally injuring himself or herself.
b) The inmate shall not be entitled to any temporary
disability indemnity benefits while incarcerated in a city
or county jail, industrial farm, or road camp.
c) No benefits shall be paid to an inmate while he or she
is incarcerated. The period of benefit payment shall
instead commence upon release from incarceration. However,
if an inmate released from a city or county jail is
receiving workers' compensation benefits and is
reincarcerated in a city or county jail, or a state prison,
the benefits shall cease immediately and not be paid during
the reincarceration.
d) No temporary disability benefits are payable upon
release for the period during which the inmate was
incarcerated in a city or county jail, industrial farm, or
road camp.
e) In determining temporary and permanent disability
indemnity benefits for an inmate, the average weekly
earnings shall be taken at not more than the minimum amount
established in law.
f) The laws governing workers' compensation shall be the
exclusive remedy against the city or county for injuries
AB 2247
Page 2
occurring while engaged in assigned work or work under
contract. Nothing in the workers' compensation laws shall
affect any right or remedy of an injured inmate for
injuries not compensated by the workers' compensation laws.
EXISTING LAW :
1)Requires employers to secure the payment of workers'
compensation for injuries incurred by their employees that
arise during the course of employment. Among the benefits are
medical treatment, temporary disability benefits, and
permanent disability benefits.
2)Specifies that in computing average annual earnings for the
purposes of temporary disability benefits and permanent total
disability benefits for injuries occurring on or after January
1, 2006, the average weekly earnings shall be taken at not
less than $189, nor more than $1,260 or 1.5 times the state
average weekly wage, whichever is greater.
3)Provides that commencing on January 1, 2007, and each January
1 thereafter, the limits specified in #2, above, shall be
increased by an amount equal to the percentage increase in the
state average weekly wage as compared to the prior year.
4)Specifies that an inmate of a state prison is entitled to
workers' compensation benefits for an injury arising during
the course of assigned employment subject to certain
limitations. Among the limitations are:
a) The inmate was not injured as a result of an assault in
which he or she was the initial aggressor, or intentionally
injured himself or herself;
b) The inmate is not entitled to any temporary disability
indemnity benefits while incarcerated in a state prison;
c) No benefits shall be paid to an inmate while he or she
is incarcerated. The period of benefit payment shall
instead commence upon release from incarceration. However,
if an inmate released from prison is receiving workers'
compensation benefits and is reincarcerated in a city or
county jail, or a state prison, the benefits shall cease
immediately and not be paid during the reincarceration.
AB 2247
Page 3
d) No temporary disability benefits are payable upon
release for the period during which the inmate was
incarcerated in a state prison.
e) In determining temporary and permanent disability
indemnity benefits for an inmate, the average weekly
earnings shall be taken at not more than the minimum amount
established in law.
f) The laws governing workers' compensation shall be the
exclusive remedy against the state for injuries occurring
while engaged in assigned work or work under contract.
Nothing in the laws governing workers' compensation affects
any right or remedy of an injured inmate for injuries not
compensated by the workers' compensation laws.
g) The Department of Corrections has medical control over
treatment provided an injured inmate while incarcerated in
a state prison, except that in serious cases, the inmate is
entitled to the services of a consulting physician.
5)Provides that dependents of a state prison inmate may receive
certain workers' compensation benefits. Specifically,
temporary and permanent disability benefits which would
otherwise be payable to an inmate during incarceration based
on an injury sustained prior to incarceration shall be paid to
the dependents of the inmate. Dependents are defined as the
inmate's spouse or children, and an inmate's former spouse due
to divorce and the inmate's children from that marriage.
6)Specifies that when a person confined in a city or county
jail, industrial farm, or road camp who is required to engage
in the prevention or suppression of forest, brush, or grass
fires, and is injured or dies while so working, is considered
to be an employee of the county or city for purposes of
workers' compensation and, thereby, is eligible for workers'
compensation benefits.
FISCAL EFFECT : Undetermined.
COMMENTS :
1)Purpose . The purpose of this bill is to conform the
requirements applicable to county inmates to those for state
prison inmates with respect to minimum temporary disability
AB 2247
Page 4
benefits under the workers' compensation laws.
2)Background . California law requires that injured workers be
paid a temporary disability benefit equal to 2/3 of their
average weekly wage. State law also contains a statutory
minimum and a maximum temporary disability rate for injured
workers. The minimum temporary disability rate for 2010 is
$148 per week.
The minimum benefit level applies to all injured workers in
California, including inmates in city and county jails.
Provisions of state law prohibit state prisoners from
receiving these payments while in state prison. State law
allows an inmate of a city or county jail, who is injured
while under custody and who had no earnings prior to
incarceration, to receive $148 per week in temporary
disability workers' compensation benefits.
3)Arguments in support . The author states that this bill is
needed to change existing law that presently allows some
people who are incarcerated in city and county jails to
receive more in temporary disability benefits than they would
have been paid if they were working. Two scenarios are given:
a) An injured worker who had no wages prior to
incarceration, but was injured while working in jail, would
receive $148 per week in temporary disability benefits
despite the fact that he or she had no wages that would
qualify him or her for the benefit. The person would be
eligible to receive the weekly wage for up to two years.
b) An injured worker who had an average weekly wage of $100
prior to injury while in jail would be paid $148 in
temporary benefits for up to two years. This inmate would
make $48 more per week while on temporary disability in
jail than they did while working before incarceration.
Both of the above scenarios reward inmates financially at the
expense of city, county, and state taxpayers. The California
Association of Joint Powers Authorities (CAJPA) states that
cities and counties are self-insured entities and this
additional cost is paid directly out of their budgets and not
by an insurance company. In most cases, the cost of these
enhanced benefits is paid directly out of the budgets of
police and sheriff's departments and means less money for law
AB 2247
Page 5
enforcement officers on the street and other worthwhile
community outreach programs. While the amount of money
currently paid to inmates is not massive, every penny counts
at a time when budget deficits are resulting in cuts in public
safety, education, and other vital social services.
Furthermore, state inmates are not eligible for these
payments. As counties are being asked to bear more and more
responsibility for incarcerating inmates in this state, it is
reasonable to ask for similar considerations regarding minimum
temporary disability rates for county inmates.
4)Arguments in opposition . The California Labor Federation,
AFL-CIO, states that this bill would reduce temporary
disability benefits for city and county jail inmates who were
injured while working on dangerous assignments including fire
suppression and highway cleanup. The temporary disability
benefits income is relied upon when he or she is medically
unable to return to work. The minimum temporary disability
payment level was put in place by the Legislature to provide
an injured worker a sufficient benefit to subsist on.
The California Applicants' Attorneys Association (CAAA) and the
Consumer Attorneys of California (CAOC) state that this bill
does not provide city and county inmates with the same
benefits provided to state prison inmates. They state that
there are at least eight other statutes that apply to injured
state prison inmates that this bill does not extend to injured
local inmates.
City and county inmates are not the same as state prison
inmates, and extending these provisions to them would result
in very unjust consequences. The California Nurses
Association states that local jail inmates are generally not
hardened criminals and their offenses are minor. The latter
are felons and serve much longer periods. Many local inmates
are gainfully employed and are "incarcerated" for short
periods, often for a few weekends in work release or community
service programs. These local inmates may be earning
substantial wages at their regular weekday jobs, and if
injured as a result of jail assignment, would be become unable
to return to work during the period of their temporary
disability. In contrast, state prisoners generally have no
income other than the minimal compensation they may receive
for working in a correctional industry, thus, explaining the
AB 2247
Page 6
why the temporary disability benefit is paid at the minimum
rate.
Under existing law, local jail inmates are considered employees
for the purpose of workers' compensation, which precludes them
from any civil remedy if they suffer an injury due to a
supervisor's authority. This bill would cause an inmate who
is seriously injured during this time to be limited to a
workers' compensation claim of $148 per week. The injured
employee is then precluded from returning to work until he or
she has recovered from the injury, but is still expected to
live off the equivalent of a wage of $3.70 per hour.
The California Labor Federation and the Consumer Attorneys of
California state that without the minimum benefit requirement,
local governments may lose the incentive to maintain safe
workplaces on these risky job assignments. Also, no data has
been received that temporary disability benefits cost a
significant amount to local governments. Instead, anecdotal
evidence refers only to minimal costs.
5)Differences between treatment proposed for county inmates to
state prisoners. While the bill patterns several conditions
on the treatment of state prisoners to city and county jail
inmates, there are several notable differences. Among the
differences are the following:
a) Notice to prisoners. Current law requires the state
Department of Corrections to present to each state
prisoner, prior to assignment to work, a printed statement
of his or her rights under the workers' compensation laws,
and a description of how to file for workers' compensation
benefits. The statement must be posted in a conspicuous
place at each place where an inmate works. This bill does
not propose to include such a posting requirement for city
or count jail inmates who are assigned to work details.
b) Control of medical treatment. Current law specifies
that the state Department of Corrections shall have medical
control over treatment provided an injured inmate while
incarcerated in a state prison, except that in serious
cases, the inmate is entitled to the services of a
consulting physician. This bill does not specify to what
extent the medical treatment will be controlled by the
department which operates the city or county jail, or when
AB 2247
Page 7
an injured inmate may obtain a consulting physician.
c) Payments of temporary and permanent disability benefits
to dependents. Current law specifies that dependents of a
state prison inmate may receive certain workers'
compensation benefits. Specifically, temporary and
permanent disability benefits which would otherwise be
payable to an inmate during incarceration based on an
injury sustained prior to incarceration shall be paid to
the dependents of the inmate (spouse or children). This
bill does not authorize the dependents of injured inmates
of city or county jails to receive temporary or permanent
disability benefits based on an injury received prior to
incarceration.
d) Workers' Compensation Attorneys. Current law requires
that state prisoners be furnished a list of qualified
workers' compensation attorneys. This bill does not extend
that same right to local inmates.
e) CalOSHA Protections . Current law defines a state
prisoner assigned to a work project as an employee for
purposes of receiving safety protections under the
California Occupational and Health Act (CalOSHA)
implemented by the state Division of Occupational Safety
and Health. This bill does not extend that same right to
city and county inmates so assigned.
6)Bill may establish a low ceiling on benefits to certain
injured persons. The bill provides that in determining
temporary and permanent disability indemnity benefits for an
inmate, the average weekly earnings shall be taken at not more
than the minimum amount established in law. The minimum
temporary disability benefits in 2010 are $148 per week. In
cases where persons earn more than $222 per week prior to
entering a county jail and becoming injured, the bill would
require that injured person to receive a lower amount of
temporary disability benefits than if he or she had been
injured at their regular job. For example, such a person
earning $600 per week prior to the injury, and normally
entitled to $400 weekly in benefits, would by the terms of the
bill only be eligible to receive $148 weekly in benefits.
This would reduce present benefits by $252 per week.
7)Prior legislation. In 2002, AB 749 (Calderon), Statutes of
AB 2247
Page 8
2002, Chapter 6, enacted both increases in workers'
compensation benefits and cost-savings reforms to the workers'
compensation system. One of the provisions of that law was to
establish the minimum weekly temporary disability benefit at
$126, and adjusted it for increases in the state average
weekly wage.
In 2005, AB 427 (La Malfa) proposed that inmates in city or
county jails, industrial farms, road camps, and inmates
assigned to a county work release program would have their
weekly earnings for purposes of temporary disabilities
determined at not less than $189 or the actual weekly wages
lost due to disability resulting from the injury, whichever is
less . Thus, under AB 427, an inmate who had substantial
pre-incarceration earnings would not even have been entitled
to receive the full benefit of the temporary disability
formula. AB 427 was approved by the Assembly on a 70-1 vote,
but failed passage in the Senate Labor and Industrial
Relations Committee.
In 2007, AB 1341 (Benoit) originally proposed to repeal the
minimum temporary disability benefit level for all employees
(including part-time and low-wage employees, jail inmates, and
volunteers), similar to the introduced version of AB 516 of
the 2009-10 Session. The author removed that provision from
AB 1341 before the bill was heard in committee.
In 2007, AB 338 (Coto) as passed by the Assembly contained a
provision that would have repealed the minimum level of
temporary disability benefits to certain inmates in city and
county jails and on work release programs. The Senate deleted
that provision prior to passing the bill.
In 2009 and 2010, AB 516 (Niello) proposed to eliminate the
minimum temporary disability benefit for inmates injured while
in a city or county jail who had no earnings in regular
employment. AB 516 would have provided that in computing
average annual earnings for purposes of these benefits for
injuries occurring to an inmate of any county jail or an
inmate assigned to a work release program, the average weekly
earnings would be taken at not less than an amount equal to
the employee's average weekly earnings from all employers, nor
more than $1,260 or 1.5 times the state average, whichever is
greater. AB 516 failed passage in the Assembly Insurance
Committee on May 6, 2009 (3-6 vote), was granted
AB 2247
Page 9
reconsideration and amended, and again failed passed in this
committee on January 6, 2010 (5-6 vote).
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Joint Powers Authorities
California Coalition on Workers Compensation
Opposition
American Federation of State, County and Municipal Employees
California Applicants Attorneys Association
California Labor Federation, AFL-CIO
California Nurses Association/National Nurses Organizing
Committee
Consumer Attorneys of California
Analysis Prepared by : Manny Hernandez / INS. / (916) 319-2086