BILL ANALYSIS Ó
AB 1740
Page 1
Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1740 (V. Manuel Perez) - As Introduced: February 17, 2012
As Proposed to be Amended
SUBJECT : EMPLOYMENT: DISCRIMINATION AGAINST VICTIMS OF DOMESTIC
VIOLENCE
KEY ISSUE : SHOULD EMPLOYERS REASONABLY ACCOMMODATE THE
WORKPLACE SAFETY OF VICTIMS OF DOMESTIC VIOLENCE AND BE
PROHIBITED FROM DISCRIMINATING AGAINST THEM?
FISCAL EFFECT : As currently in print this bill is currently
keyed fiscal.
SYNOPSIS
This bill would prohibit employers from discriminating or
retaliating against employees who suffer domestic violence,
sexual assault or stalking, and would allow employees to request
reasonable accommodation to ensure their safety in the
workplace. The bill's supporters, including law enforcement,
domestic violence, labor and community groups, report that
domestic violence, sexual assault and stalking trickle into the
workplace and jeopardize victims' employment and safety at work.
The problem is appallingly widespread, with one in five women
experiencing some form of domestic violence in her lifetime,
often associated with alarming rates of job loss and other
problems at work due to abuse. This bill would offer a modicum
of protection. 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. By protecting victims from
discrimination and retaliation, supporters argue, victims who
frequently fear adverse employment actions will be less hesitant
to report and work with law enforcement to investigate and
prosecute domestic abuse crimes. Proposed amendments would
clarify and limit these protections and place them in the Labor
Code, rather than the Fair Employment and Housing Act.
Business advocates oppose the bill, arguing that it will "expose
the employer to costly litigation, as well as interfere with the
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employer's ability to efficiently operate his or her business."
According to opponents, "there is simply no evidence to suggest
that the additional protections proposed by AB 1740 are
necessary in light of the existing protections, especially in
comparison to the significant burden and cost of litigation AB
1740 will create for employers."
SUMMARY : Prohibits job discrimination and requires reasonable
accommodation of victims of domestic violence, sexual assault
and stalking. Specifically, this bill :
1)Protects victims of domestic violence, sexual assault, or
stalking (all of which are defined by reference to existing
law) from employment discrimination and retaliation.
2)Requires reasonable accommodation for the workplace safety of
these victims if requested, such as:
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 domestic violence, sexual assault, or stalking.
3)Specifies that an employer is not required to undertake an
action that constitutes an under hardship on the employer's
business operations.
4)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.
5)Allows an employer to request that an employee provide either
a police or court record or other documentation related to the
domestic violence, sexual assault or stalking.
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6)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)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. (Labor
Code section 230.)
2)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. (Labor Code section
230.1.)
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.
Background on Workplace Problems Suffered By Victims of Domestic
Violence. A 2003 report titled "Women's Health: Findings from
the California Women's Health Survey, 1997-2003," (CWHS) found
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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
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
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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
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
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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.
Existing Law Allows Time Off Work And Prohibits Retaliation For
Exercising That Right . Under existing law, an employer may not
discharge, discriminate or retaliate against an employee who is
a victim of domestic violence or a victim of sexual assault for
taking time off from work to obtain or attempt to obtain any
relief, including, but not limited to, a temporary restraining
order, restraining order, or other injunctive relief, to help
ensure the health, safety, or welfare of the victim or his or
her child.
In addition, existing law prohibits an employer with 25 or more
employees from discharging or in any manner discriminating or
retaliating against an employee who is a victim of domestic
violence or a victim of sexual assault for taking time off from
work to attend to any of the following: (1) To seek medical
attention for injuries caused by domestic violence or sexual
assault; (2) To obtain services from a domestic violence
shelter, program, or rape crisis center as a result of domestic
violence or sexual assault; (3) To obtain psychological
counseling related to an experience of domestic violence or
sexual assault; (4) To participate in safety planning and take
other actions to increase safety from future domestic violence
or sexual assault, including temporary or permanent relocation.
Violation of these statutes are remedied by reinstatement and
reimbursement for lost wages and work benefits caused by the
acts of the employer via either a complaint to the Division of
Labor Standards Enforcement of the Department of Industrial
Relations or by court action.
Similar Laws In 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
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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 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 (LAS-ELC) states 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
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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
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 : A coalition of business interests
filed opposition to the bill when it sought to amend the Fair
Employment and Housing Act (FEHA) prior to the proposed
amendments. It is expected that the proposed amendment may help
to address some but not all of the concerns expressed by these
opponents, whose letter of opposition states:
AB 1740 seeks to prevent employment discrimination against
employees who have been threatened with or are victims of
domestic abuse, sexual assault, and stalking, as well as
employees whose family members are actual or threatened
victims of domestic abuse, sexual assault, or stalking.
Unlike other existing protected classifications under FEHA
that are more objective, determining who is a victim of
domestic abuse, sexual assault, or stalking is a daunting
task for employers. For example, at what point does
marital fighting turn into domestic abuse? How many phone
calls per day from a significant other qualifies as
"stalking?" AB 1740 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. Employers are not in a
position to make such decisions and should not be forced
into making one by AB 1740.
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Moreover, AB 1740 will require employers to inquire into an
employee's personal life, outside of work, thereby placing
them in a legal predicament. California Labor Code section
96(k) precludes employers from taking any action based upon
off-duty conduct. Article 1, Section 1 of the California
Constitution also recognizes that employees have a legal
right to privacy in their personal lives and relationships.
See Tien v. Superior Court, 139 Cal.App.4th 528, 539
(2006). AB 1740 would blur the distinction between
personal and workplace issues by forcing employers to
determine if activities in an employee's personal life have
triggered the proposed protected classification under AB
1740. Accordingly, employers will be forced to choose
between: (1) a claim of discrimination under AB 1740 by
failing to discover the employee or the employee's family
member is a victim or potential victim of domestic abuse,
sexual assault, or stalking; or, (2) a claim for invasion
of privacy and violation of the labor code, because the
employer inquired into the employee's off-duty, personal
life.
AB 1740 further requires an employer to "accommodate" an
employee who is a victim of domestic abuse, sexual assault,
or stalking with "safety measures." Unlike an employer's
duty to accommodate an employee's physical disability, the
extent of which is generally documented by a medical
provider, there is no clear guidance upon which an employer
can rely in order to determine what qualifies as a
"reasonable accommodation" for purposes of domestic
violence, sexual assault, or stalking. Additionally, it is
unclear how long an employer must accommodate a victim of
domestic abuse, stalking or sexual assault, especially if
the employee does nothing to remove himself/herself from
the toxic environment. This duty to accommodate under AB
1740 will require an employer to constantly monitor an
employee's personal life to determine when activities have
triggered a duty to accommodate versus when events have
calmed down enough to remove the duty. As set forth above,
this will certainly expose the employer to costly
litigation, as well as interfere with the employer's
ability to efficiently operate his or her business.
Finally, there are already significant protections in place
for victims of domestic abuse, sexual assault, and
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stalking. Labor Code sections 230-230.2 preclude an
employer from discriminating or retaliating against an
employee who is a victim of domestic abuse or sexual
assault and provides the employee with an indefinite
protected leave of absence to seek medical attention,
services, counseling, or attend criminal proceedings.
Labor Code sections 132(a) and 3553 extends workers'
compensation benefits to employees who are victims of crime
at the workplace, and prevents an employer from
discriminating on that basis. Code of Civil Procedure
section 527.8 allows an employer to obtain a restraining
order on behalf of an employee who has suffered "unlawful
violence" or has been threatened with "unlawful violence."
There is simply no evidence to suggest that the additional
protections proposed by AB 1740 are necessary in light of
the existing protections, especially in comparison to the
significant burden and cost of litigation AB 1740 will
create for employers.
Author's Proposed Amendments. In response to opposition
concerns, the author helpfully proposes substantial amendments
as reflected in the bill mock-up which accompanies this
analysis.
Prior Related Legislation . SB 1745 (Kuehl) of 2006 was similar
to this bill, but took a different approach, adding 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership To End Domestic Violence (co-sponsor)
Legal Aid Society - Employment Law Center (co-sponsor)
9to5 California, National Association of Working Women
American Federation of State, County and Municipal Employees,
AFL-CIO
American Association of University Women
ACLU of California
Asian Communities For Reproductive Justice
Asian Pacific Islander Legal Outreach
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California Coalition Against Sexual Assault
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California Nurses Association
California Police Chiefs Association
California Women's Law Center
California Rural Legal Assistance Foundation
Casa de Esperanza, Inc.
Center for Domestic Peace
Communications Workers of America, Local 9003
Communications Workers of America, Local 9588
Community Overcoming Relationship Abuse
Community Solutions
Crime Victims United of California
Equal Rights Advocates
Futures Without Violence
Glendale City Employees Association
Interface Children and Family Services
La Casa de las Madres
LAANE
Labor Project for Working Families
Long Beach Coalition for Good Jobs and Healthy Community
Mountain Crisis Services
National Association of Social Workers, California Chapter
Organization of SMUD Employees
Peace Over Violence
Restaurant Opportunities Center of Los Angeles
SafeQuest Solano
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Solano County Office of Family Violence Prevention
Western Center on Law and Poverty
Westside Domestic Violence Shelter
Wild Iris
Worksafe
YWCA Silicon Valley
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
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California Grocers Association
California Independent Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Retailers Association
Civil Justice Association of California
CSAC Excess Insurance Authority
East Bay Rental Housing Association
Engineering Contractors' Association
Flasher Barricade Association
Greater Bakersfield Chamber of Commerce
Marin Builders Association
National Federation of Independent Business
NORCAL Rental Property Association
Orange County Business Council
San Diego County Apartment Association
Southwest California Legislative Council
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334