BILL ANALYSIS Ó
AB 1740
Page 1
Date of Hearing: March 28, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 1740 (V. Manuel Perez) - As Introduced: February 17, 2012
SUBJECT : Employment: discrimination: victims of domestic
violence, sexual assault or stalking.
SUMMARY : Expands the discrimination protections covered by the
California Fair Employment and Housing Act (FEHA) to include
status as a victim of domestic violence, sexual assault or
stalking and creates specific protections for workers under this
status. Specifically, this bill :
1)Adds status as a victim of domestic violence, sexual assault,
or stalking (as defined) to the list of protected classes
under FEHA.
2) Adds to the FEHA definition of "reasonable accommodation," a
provision specific to victims of domestic violence, sexual
assault, or stalking, that requires employers to implement
safety measures that may include:
a) A transfer, reassignment or modified schedule;
b) Changed work telephone, changed work station or
installed lock;
c) Assistance in documenting domestic violence, sexual
assault or stalking that occurs in the workplace; and,
d) An implemented safety procedure or another adjustment to
a job structure, workplace facility, or work requirement in
response to actual or threatened domestic violence, sexual
assault, or stalking.
3)Makes it an unlawful employment practice for an employer to do
any of the following, unless based on a bona fide occupational
qualification, to an employee who is a victim of actual or
threatened domestic violence, sexual assault or stalking:
a) Refuse to provide, in a timely fashion, reasonable
accommodations;
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b) Fail to engage in a timely, good faith interactive
process with the individual to determine effective
reasonable accommodations, if any, in response to a request
for reasonable accommodations;
c) Retaliate for a request of a reasonable accommodation,
regardless of whether the request was granted;
d) Retaliate for providing documentation for the purpose of
certifying the need for accommodations or the need to take
time off for reasons related to domestic violence, sexual
abuse or stalking, including, but not limited to:
i) Obtaining a temporary restraining order, restraining
order or injunction;
ii) Seeking medical attention for injuries related to an
experience of domestic violence or sexual assault;
iii) Obtaining psychological counseling related to an
experience of domestic violence or sexual assault; and,
iv) Participating in safety planning and other actions
to increase safety from future domestic violence or
sexual assault, including temporary or permanent
relocation.
4)Prohibits an employer from discriminating against an employee
who is a victim of threatened or actual domestic violence,
sexual assault or stalking because the workplace or a
work-related setting is disrupted or threatened by action of
an individual identified by the employee as the person who has
committed or threatened to commit domestic violence, sexual
assault or rape.
5)Specifies that an employer is not required to undertake an
action that constitutes an under hardship on the employer's
business operations.
6)Requires an employee, or an individual acting on the
employee's behalf, to provide a signed written statement to
his or her employer certifying that the accommodation is for a
purpose related to status as a victim of domestic violence,
sexual assault or stalking.
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7)Allows an employer to request that an employee provide either
a police or court record related to the domestic violence,
sexual assault or stalking.
8) Allows an employer to request that an employee provide a
signed written statement that the employee is a victim of
threatened or actual domestic violence, sexual assault or
stalking from an employee or agent of a victim services
organization, an attorney, a licensed medical professional or
other licensed professional from whom the employee has sought
assistance with respect to the domestic violence, sexual
assault or stalking.
9)Requires employers to maintain as confidential and prohibits
disclosure by the employer, any verbal or written statement,
police or court record, or documentation provided to the
employer identifying an employee as a victim of domestic
violence, sexual assault or stalking. However, this bill
permits an employer to disclose documentation of an employee's
status as a victim of domestic violence, sexual assault or
stalking if federal or state law requires the employer to do
so or if disclosure is necessary to protect the employee's
safety in the workplace.
EXISTING LAW :
1)Establishes FEHA to protect and safeguard the right and
opportunity of all persons to seek, obtain, and hold
employment without discrimination or abridgment on account of
race, religious, creed, color, national origin, ancestry,
physical disability, mental, disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, or sexual orientation.
2)Prohibits employers from discriminating or retaliating against
victims of domestic violence or sexual assault who take time
off from work to seek judicial relief to help ensure the
health or welfare of the victim or his or her child.
3)Prohibits employers with 25 or more employees from discharging
or discriminating against a victim who takes time off to seek
medical attention, obtain services from a domestic violence
shelter or rape crisis center, obtain psychological counseling
or participate in safety planning.
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FISCAL EFFECT : Unknown
COMMENTS : According to the author, domestic violence, sexual
assault and stalking are forms of violence that trickle into the
workplace and jeopardize victims' employment and safety at work.
The author states that one in five women will experience some
form of domestic violence in her lifetime and studies have shown
alarming rates of job loss and other problems at work due to
abuse. According to the author, economic independence is a
critical factor in permanently escaping abuse. The author states
that, because acts of violence can often follow a victim to
work, basic accommodations, such as providing a new telephone
extension or work email address, can help protect abuse victims
and the employers. In addition, the author states that victims
who fear adverse employment actions are more hesitant to report
and work with law enforcement who investigates domestic abuse
crimes.
A 2003 report titled "Women's Health: Findings from the
California Women's Health Survey, 1997-2003," (CWHS) found that
one quarter to one-third of all adult women in the United States
(U.S.) have been physically abused by an intimate partner during
their lifetime. The CWHS study also notes that approximately 40
percent of California women experience physical intimate partner
violence in their lifetimes.
The National Partnership for Women & Families (NPWF) states that
incidents of domestic violence, sexual assault, and stalking
affect a large number of workers. According to NPWF, the loss of
employment can be devastating for domestic violence survivors
because they often need financial security to ensure their
safety and the safety of their children. They note that data has
shown that victims of domestic violence often stay with their
abuser because they are financially dependent on that person. A
2005 study published in the Journal of Occupational Health
Psychology titled "Domestic Violence and Employment: A
Qualitative Study" (DVE Study) illuminates the consequences that
domestic violence can have on women's employment. The DVE Study
found that domestic violence has an effect on women's job
performance and that women reported missing work, were
terminated from a job or resigned as a direct result of
victimization.
According to the DVE Study, an employer's response to their
employee's disclosure of domestic violence victimization plays
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an important role in whether or not an employee chooses to
inform a supervisor or co-worker of her abuse. The DVE Study
notes that employed domestic violence victims often fear job
loss, a sense of shame, or a belief that they can handle work
and their abusive home situation without help from someone at
work. Unfortunately, data from the DVE Study shows that
significant levels of stress and psychological discomfort that
result from stalking, or an abuser's job interference behaviors,
including showing up at the worksite and incessant calling, can
affect an employee's job performance.
The DVE Study suggests that employer-based supports primarily
lead to short-term job retention, but an employee's concern
about safety often thwarts the long term benefits associated
with employer or co-worker support.
The National Coalition Against Domestic Violence (NCADV) notes
that 37 percent of women have indicated that domestic violence
has had a negative impact on their job performance. NCADV states
that women who have been raped or sexually assaulted report
diminished work function and approximately one-fourth of the 1
million women who are stalked each year report missing an
average of 11 days as a result of stalking. A 2003 report from
the U.S. Department of Health and Human Services titled "Cost of
Intimate Partner Violence Against Women in the United States
(HHS Report) found that intimate partner violence (IPV) victims
lose approximately 8 million days of paid work annual; the
equivalent of 32,000 full time jobs. The HHS Report states that
the costs of intimate partner rape, physical assault, and
stalking exceeds $5.8 billion each year, including $0.9 billion
in lifetime earnings lost by victims of IPV homicide.
A 2009 Report titled "Domestic Violence and Work: Legal and
Business Perspectives," (DVW Report) asserts that domestic
violence causes problems for employers as well as employees,
including, economic loss due to lost productivity,
administrative difficulties that result from employees who take
unplanned time off, higher insurance premiums and the
possibilities of lawsuits. The DVW Report asserts that research
has shown that one out of every five employed adults has
personally experienced domestic violence and 96 percent of
victims have experienced trouble at work related to domestic
violence. In addition, the DVW Report, similar to the
aforementioned DVE Study, notes that employees experience
decreased productivity during and after actual or threatened
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violence and may require time off from work, or flexible work
arrangements to address safety concerns, medical needs and legal
issues arising out of or related to domestic violence.
According to the DVW Report, safety planning by employees and
employers is necessary to address domestic violence at work
because the effects of domestic violence spill over into the
workplace even if the specific acts of violence are not
perpetrated at work. The DVW Report also states that safety
planning for employees includes communicating with colleagues
and supervisors about one's situation, changing the location or
schedule of work as well and work contact information, such as
email addresses and telephone numbers or seeking a protection
order that includes the worksite. Safety planning for employers
can also include the implementation of a written policy
establishing protocols for responding to and supporting
employees who are victims of domestic violence.
Unfortunately, the DVW Report states that there is often little
or no structure in place at work for employees who want to
disclose their status as a victim of domestic violence to a
supervisor or coworker's attention. According to the United
States Bureau of Labor Statistics (BLS), over 70 percent of U.S.
workplaces do not have a formal program or policy that addresses
workplace violence. BLS notes that, of the 30 percent of
establishments that have formal programs or policies in place,
only 44 percent address domestic violence.
This bill is double-referred to Assembly Judiciary Committee.
Other States
Connecticut state law (Public Act No. 10-144) prohibits an
employer from firing, penalizing or threatening an employee for
attending or participating in a court proceeding related to a
civil case in which the employee is a victim of family violence.
The state defines as an incident resulting in physical harm,
bodily injury or assault, or an act of threatened violence that
constitutes fear of imminent physical harm, bodily injury or
assault between family or household members. Connecticut state
law also requires employers to give employee victims of family
violence up to twelve days of unpaid leave during a calendar
year, in addition to other leave provided under state and
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federal law, to seek medical care or psychological counseling,
obtain services from a domestic violence assistance
organization, victim relocation or participate in criminal
proceedings related to or resulting from family violence.
Hawaii's Revised Statutes (Section 378-2), include domestic or
sexual violence victim status in its anti-discrimination labor
laws and requires employers to make reasonable accommodations
for victims of domestic or sexual violence, including, but not
limited to changing contact information such as telephone number
or email addresses, screening the employee's telephone calls,
changing the work location for the employee, installing locks
and other security devices and allowing the employee to work
flexible hours. Hawaii state law also allows employers to
request that the employee verify that he or she is a victim of
domestic or sexual abuse by providing a written statement from
the employee, or other sources including, police or court
records.
Illinois' Compiled Statutes (Section 820, ILCS 180/15) prohibits
employer discrimination based on an employee's status as a
victim of domestic or sexual violence. Illinois state law also
entitles employed victims of domestic or sexual violence and
employees with a family or household member who is a victim to
take unpaid leave to seek medical help, legal assistance,
counseling, safety planning, and other assistance without
penalty from their employers. The state's law also protects
employees from discharge and harassment when, in response to
actual or threatened domestic or sexual violence, they request
an adjustment to their job structure, workplace facility, work
requirement, including a transfer, reassignment, or modified
schedule, leave, a changed telephone number or seating
assignment, installation of a lock or implementation of a safety
procedure.
ARGUMENTS IN SUPPORT :
Writing as the sponsor of the bill, the Legal Aid Society
Employment Law Center states (LAS-ELC) that current law does not
clearly prohibit adverse employment actions based on one's
status as a victim and does not require employers to provide
safety-related accommodations to employees struggling with
domestic or sexual abuse. LAS-ELC writes that AB 1740 will
protect domestic abuse survivors' employment when they are most
in need of financial stability and therefore increase their
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ability to escape an abusive relationship. In their letter of
support, the California Labor Federation (CLF) writes that
firing an employee who discloses that he or she is a victim of
domestic violence or stalking severely jeopardizes that worker's
economic independence and, as a result, that worker's physical
safety. CLF states that the bill's minimal protections will
make a substantial difference in the lives of victimized workers
with a negligible impact to employers. The California Nurses
Association (CNA) writes that nurses frequently see victims of
domestic abuse in the clinical setting and know the fear these
individuals have of their abusers.
CNA states that ensuring that there is some level of employment
security for victims that disclose his or her victimization to
his or her employer will encourage victims to report these
crimes and feel a greater sense of safety as they recover from
domestic violence or stalking.
ARGUMENTS IN OPPOSITION :
In a letter of opposition, a coalition of California businesses,
including the California Chamber of Commerce, the California
Retailers Association and the California Grocers Association,
write that this bill will increase the burden on employers to
conduct business in California and expose such employers to
costly litigation. Opponents state that this bill will force an
employer into a judicial role to determine when a crime of
domestic abuse, stalking, or sexual assault has occurred for
purposes for triggering the proposed protection under FEHA.
They write that employers are not in a position to make such
decisions and should not be force into making one. Opponents
also write that this bill will require employers to inquire into
an employee's personal life, outside of work, and thereby blur
the distinction between personal and workplace issues.
Opponents also state that this bill requires employers to
accommodate an employee who is a victim of domestic abuse,
sexual assault, or stalking without any clear guidance upon
which the employer can rely in order to determine what qualify
as a "reasonable accommodation." They also write that the bill
is unclear as to the length of time that an employer must
accommodate a victim of domestic violence, abuse, stalking or
sexual assault, especially if the employee does not remove
himself or herself from their situation. As a result, opponents
state that an employer would be required to constantly monitor
an employee's personal life and expose the employer to costly
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litigation as well as interfere with the employer's ability to
efficiently operate his or her business. Finally, opponents
write that there is no evidence to suggest that the additional
protections proposed by this bill are necessary in light of
existing protections that prohibit employers from discriminating
or retaliating against a victim of domestic abuse or sexual
assault.
PRIOR RELATED LEGISLATION :
SB 1745 (Kuehl) of 2006 was similar to this bill, but took a
different approach. Rather than amend FEHA, SB 1745 simply
added a provision to the Civil Code that declared it against the
public policy of the state for any employer to harass or
discriminate against an individual because the person is a
victim of domestic violence, sexual assault or stalking.
SB 1745 was vetoed by Governor Schwarzenegger, who stated the
following in his veto message:
"This bill would provide that it is contrary to the public
policy of the State to discriminate against a person in
employment because he or she is a victim of domestic
violence, sexual assault, or stalking. Although I support
the intent to ensure victims of these crimes have adequate
protections, this bill is too flawed to enact.
California employers are currently required to take
reasonable steps to provide a safe and secure workplace for
all employees, including a duty to adequately address the
potential for workplace violence. Because the precise
employee rights and employer obligations under this bill
are not defined, the combination of existing law and this
bill would place employers in an untenable position.
For instance, if an employer determines that removing an
employee from the workplace is necessary to provide a safe
workplace and keep other employees safe, the employer may
very well be sued for violation of the public policy
established by this bill. On the other hand, if the
employer determines an employee must be allowed to continue
performing duties in the workplace in order to comply with
this bill, the employer may face litigation arising from
injuries sustained by other employees if workplace violence
occurs.
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I am also concerned that this bill could lead employers, in
an effort to comply with the law, to violate an employee's
privacy. Because the law is unclear whether an employer
must have specific knowledge that an employee is a victim
in order for the protections of this bill to apply, an
employer may feel compelled to inquire about the personal
reasons why an employee has missed worked or taken a
prolonged absence. This is not only an undue burden on
employers but a possible invasion of employees' privacy
rights.
However well-intentioned or worthy of consideration, this
bill would create conditions that can only be resolved
through the courts at great expense to employers and
employees alike."
REGISTERED SUPPORT / OPPOSITION :
Support
9to5 California, National Association of Working Women
American Federation of State, County and Municipal Employees,
AFL-CIO
Asian Communities For Reproductive Justice
Asian Pacific Islander Legal Outreach
California Coalition Against Sexual Assault
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California Nurses Association
California Partnership To End Domestic Violence (Co-sponsor)
California Women's Law Center
California Rural Legal Assistance Foundation
Communications Workers of America, Local 9003
Communications Workers of America, Local 9588
Community Overcoming Relationship Abuse
Crime Victims United of California
La Casa de las Madres
LAANE
Labor Project for Working Families
Mountain Crisis Services
National Association of Social Workers, California Chapter
Peace Over Violence
Restaurant Opportunities Center of Los Angeles
Solano County Office of Family Violence Prevention
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The Legal Aid Society - Employment Law Center (Sponsor)
Western Center on Law and Poverty
Wild Iris
Opposition
Apartment Association, California Southern Cities
California Chamber of Commerce
California Chapter of American Fence Association
California Fence Contractors' Association
California Farm Bureau Federation
California Framing Contractors Association
California Grocers Association
California Independent Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Retailers Association
East Bay Rental Housing Association
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
National Federation of Independent Business
NORCAL Rental Property Association
Orange County Business Council
Analysis Prepared by : Shannon McKinley / L. & E. / (916)
319-2091