BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 272|
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                                   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,  








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            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  







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          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.  







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          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  







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          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


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