BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 272| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 272 Author: Lackey (R), et al. Amended: 4/15/15 in Assembly Vote: 21 SENATE LABOR & IND. REL. COMMITTEE: 5-0, 6/24/15 AYES: Mendoza, Stone, Jackson, Leno, Mitchell SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 ASSEMBLY FLOOR: 75-0, 5/7/15 - See last page for vote SUBJECT: California Fair Employment and Housing Act: reserve peace officers SOURCE: Author DIGEST: This bill provides that a person deputized or appointed by the proper authority as a peace officer pursuant to Penal Code Section 830.6 including, but not limited to, a person who is deputized or appointed as a reserve deputy sheriff or a reserve city police officer, is an employee of the appointing authority for purposes of the California Fair Employment and Housing Act. ANALYSIS: Existing law: 1)Prohibits, under the Fair Employment and Housing Act (FEHA), as a matter of public policy, discrimination and harassment in employment on the basis of race, religious creed, color, AB 272 Page 2 national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Those protections cover employment applicants, employment training applicants, employees, and apprentices. (Gov. Code Sec. 12940 et seq.) 2)Prohibits, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations, as specified, an employer to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person's religious belief or observance and any employment requirement. (Gov. Code Sec. 12940(l).) 3)Provides that whenever a qualified person is deputized or appointed by the proper authority as a reserve or auxiliary sheriff or city police officer, a reserve deputy sheriff, a reserve deputy marshal, a reserve police officer of a regional park district or of a transit district, among others, and is assigned specific police functions by that authority, the person is a peace officer and the authority of a person designated as a peace officer extends only for the duration of the person's specific assignment. (Penal Code Sec. 830.6) 4)Provides that whenever a qualified person is deputized or appointed by the proper authority as a reserve or auxiliary sheriff or city police officer, a deputy sheriff, or a reserve police officer of a regional park district or a transit district, and is assigned specific police functions by that authority, the person is an employee of the county, city, city and county, town, or district for the purposes of worker's compensation. (Labor Code Sec. 3362.5) This bill provides that a person deputized or appointed by the proper authority as a peace officer pursuant to Penal Code Section 830.6 including, but not limited to, a person who is deputized or appointed as a reserve deputy sheriff or a reserve city police officer, is an employee of the appointing authority AB 272 Page 3 for purposes of FEHA. Comments Existing law under FEHA bars employment discrimination on the basis of enumerated protected categories. However, the FEHA definition of "employee" (Government Code Section 12926(c)) does not define who is an employee under the law; but rather excludes specified individuals from the definition. FEHA regulations define an employee as "any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written." There have been several recent state cases where the courts have denied FEHA coverage to certain categories of "volunteers": Mendoza v. Town of Ross, 128 Cal. App. 4th 625 (2005). The plaintiff was born with cerebral palsy resulting in quadriplegia, and used a wheelchair. He was retained as a volunteer community service officer and was assigned to an elementary school and assisted in traffic duties, crime prevention and neighborhood crime watch programs. After he was terminated from his volunteer position, he filed suit alleging wrongful termination and discrimination based on disability in violation of FEHA. The court held that because Mendoza was unpaid and did not allege that he was provided any substantial benefits, he did not meet the definition of "employee" for FEHA purposes. Estrada v. City of Los Angeles, 218 Cal. App. 4th 143 (2013), involved a claim for disability discrimination under FEHA by a reserve officer for the Los Angeles Police Department. The court held that Estrada was an uncompensated volunteer rather than an employee, despite the fact that such officers were deemed by the City to be "employees" for the limited purpose of extending workers' compensation benefits to them in the event they were injured while performing their duties. Therefore, he was not able to pursue a discrimination claim under FEHA. Need for this bill? According the author, currently there are conflicting definitions when referring to reserve peace officers, namely an uncertainty as to whether they are volunteers or employees. AB 272 clarifies that reserve peace officers are employees, therefore protecting them under FEHA. AB 272 Page 4 The author notes that the proposed bill imposes no additional requirements on law enforcement agencies as they are required to abide by these requirements as to their full-time sworn and non-sworn employees in any event - by specifically defining a reserve peace officer as an employee within the meaning of FEHA, the same protections will be extended to reserve peace officers. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No SUPPORT: (Verified7/8/15) California Reserve Peace Officers Association One individual OPPOSITION: (Verified7/8/15) California Association of Joint Powers Authorities California State and Association of Counties California State and Association of Counties Excess Insurance Authority League of California Cities ARGUMENTS IN SUPPORT: Proponents note that under existing law, FEHA does not include reserve peace officers. Proponents argue that due to this oversight peace officers are vulnerable to termination, discrimination and harassment that should be viewed as unlawful. Proponents note that reserve peace officers perform the same duties and functions as full-time peace officers. Proponents argue that reserve peace officers can be terminated or disciplined on the basis of their race, age, or sexual orientation and AB 272 corrects this due process problem. ARGUMENTS IN OPPOSITION:Opponents express concern that AB 272 establishes new liability for public entities that utilize volunteer reserve officers for claims of discrimination under FEHA, using valuable resources in responding to claims, regardless of the merit. Opponents contend that AB 272 also increases the costs of utilizing volunteers because of AB 272 Page 5 heightened requirements of qualifying, documenting, and reporting of volunteers to develop a defense against potential future allegations of discrimination. Lastly, opponents argue that the public entity will also pay heavily, even if the plaintiff loses as the employer is prohibited by a recent case from seeking reimbursement of their attorney fees and costs when they successfully defend against a FEHA claim by an employee. ASSEMBLY FLOOR: 75-0, 5/7/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Campos, Roger Hernández, Holden, Nazarian, Steinorth Prepared by:Deanna Ping / L. & I.R. / (916) 651-1556 7/8/15 11:53:21 **** END ****