Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations on the basis of certain specified characteristics, including race, creed, or national origin. Existing law defines these characteristics and other terms for purposes of the act.

Under existing law, a person deputized or appointed as a reserve or auxiliary sheriff or city police officer, a reserve deputy sheriff, a reserve deputy marshal, a reserve police officer of a transit district, a reserve park ranger, a reserve harbor or port police officer, or a reserve officer of a school district, among others, by the proper authority, who is assigned specific police functions by that authority or is designated by local ordinance or resolution, and who meets specified requirements, is a peace officer.

This bill would make a person deputized or appointed by the proper authority as a peace officer pursuant to the above provisions an employee for purposes of the California Fair Employment and Housing Act.

The bill would also update an obsolete cross-reference.

Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations on the basis of certain specified characteristics, including race, creed, or national origin. Existing law defines these characteristics and other terms for purposes of the act.

Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations on the basis of certain specified characteristics, including race, creed, or national origin. Existing law defines these characteristics and other terms for purposes of the act.

This bill would make a nonsubstantive change to these definitions. define specified reserve or auxiliary public safety officers as employees for purposes of these provisions.

Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations on the basis of certain specified characteristics, including race, creed, or national origin. Existing law defines these characteristics and other terms for purposes of the act.

This bill would make a nonsubstantive change to these definitions.

GOVERNOR'S VETO

GV Bill Id:AB 272

Author:(Lackey)

As Enrolled Ver:August 19, 2015

2/3 vote

SUMMARY: Provides that a person deputized or appointed by the proper authority as a reserve deputy sheriff or a reserve city police officer, is an employee of the county, city, city and county, town, district or other such proper authority for all purposes of the Fair Employment and Housing Act (FEHA).

EXISTING LAW prohibits employment discrimination on the basis 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, sexual orientation, or military and veteran status.

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill will result in minor and absorbable costs to the Department of Fair Employment and Housing. In addition, this bill will result in unknown, potentially significant costs to local governments related to civil litigation.

COMMENTS: FEHA prohibits employment discrimination on the bases of enumerated protected categories. However, the FEHA definition of "employee" does not actually define who is an employee under the law; it merely excludes specified individuals from the definition. However, the FEHA regulations define an employee as "[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written." Therefore, FEHA provides little or no protection to individuals who do not meet the definition of "employee" under the law.

One of the most notable recent cases arising under FEHA was Estrada v. City of Los Angeles, 218 Cal. App. 4th 143 (2013), a case involving 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.

This bill responds directly to the Estrada decision by specifically providing that specified reserve peace officers are considered to be "employees" for purposes of FEHA. According to the author, this bill would ensure that reserve peace officers are protected under FEHA and would protect against their mistreatment and discrimination within the workplace.

The California Reserve Peace Officers Association supports this bill, arguing that despite the fact that reserve peace officers perform "the same duties and functions as full-time peace officers," they are vulnerable to termination, discrimination and harassment that should be viewed as unlawful.

There is no opposition on file.

GOVERNOR'S VETO MESSAGE:

This bill would impose, for the first time, liability upon public entities for claims of discrimination brought by volunteer peace officers.

Last year I signed AB 1443, which afforded protection against harassment to all volunteers, including peace officers. That bill makes sense, but I am not convinced that the expanded liability included in this bill does.

Analysis Prepared by: Benjamin Ebbink / L. & E. / (916) 319-2091 FN: 0002288

 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, 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 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. 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.: Yes Local: No

SUPPORT: (Verified 7/8/15)

California Reserve Peace Officers Association

One individual

OPPOSITION: (Verified 7/8/15)

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 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 ****

SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS

Senator Tony Mendoza, Chair

2015 - 2016 Regular

Bill No: AB 272 Hearing Date: June 24, 2015

Subject: California Fair Employment and Housing Act: reserve peace officers

KEY ISSUE

Should the legislature include an appointed or deputized peace officer in the designation of an employee for the purposes of the California Fair Employment and Housing Act?

ANALYSIS

Existing law under the Fair Employment and Housing Act (FEHA) prohibits, as a matter of public policy, discrimination and harassment in employment on the basis 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, sexual orientation, or military and veteran status. Those protections cover employment applicants, employment training applicants, employees, and apprentices. (Gov. Code Sec. 12940 et seq.)

Existing law 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).)

Existing law 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)

Existing law 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 for purposes of the California Fair Employment and Housing Act.

COMMENTS

1. Legislative and Legal Background

Current law under the Fair Employment and Housing Act (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. 4^th 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.

2. 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 would clarify that reserve peace officers are employees, therefore protecting them under the Fair Employment and Housing Act. 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.

2. Proponent Arguments:

Proponents note that under current law, the California Fair Employment and Housing Act 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.

3. Opponent Arguments:

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 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.

4. Prior Legislation

AB 1443 (Skinner) Chapter 302, Statutes of 2014, amended FEHA's harassment provisions to include unpaid interns and volunteers, meaning that such individuals are now protected from unlawful employment harassment in a manner similar to employees.

AB 11 (Logue) Chapter 120, Statutes of 2013, requires an employer employing 50 or more employees to allow an employee who performs duty as a reserve peace officer or emergency rescue personnel to take temporary leaves of absence, for up to 14 days in a calendar year, to engage in fire, law enforcement, or emergency rescue training.

SUPPORT

California Reserve Peace Officers Association

1-individual

OPPOSITION

California Association of Joint Powers Authorities

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 272

Author:(Lackey)

As Amended Ver:April 15, 2015

Majority vote

SUMMARY: Provides that a person deputized or appointed by the proper authority as a reserve deputy sheriff or a reserve city police officer, is an employee of the county, city, city and county, town, district or other such proper authority for all purposes of the Fair Employment and Housing Act (FEHA).

EXISTING LAW prohibits employment discrimination on the basis 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, sexual orientation, or military and veteran status.

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill will result in minor and absorbable costs to the Department of Fair Employment and Housing. In addition, this bill will result in unknown, potentially significant costs to local governments related to civil litigation.

COMMENTS: FEHA prohibits employment discrimination on the bases of enumerated protected categories. However, the FEHA definition of "employee" does not actually define who is an employee under the law; it merely excludes specified individuals from the definition. However, the FEHA regulations define an employee as "[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written." Therefore, FEHA provides little or no protection to individuals who do not meet the definition of "employee" under the law.

One of the most notable recent cases arising under FEHA was Estrada v. City of Los Angeles, 218 Cal. App. 4th 143 (2013), a case involving 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.

This bill responds directly to the Estrada decision by specifically providing that specified reserve peace officers are considered to be "employees" for purposes of FEHA. According to the author, this bill would ensure that reserve peace officers are protected under FEHA and would protect against their mistreatment and discrimination within the workplace.

The California Reserve Peace Officers Association supports this bill, arguing that despite the fact that reserve peace officers perform "the same duties and functions as full-time peace officers," they are vulnerable to termination, discrimination and harassment that should be viewed as unlawful.

There is no opposition on file.

Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0000212

Date of Hearing: April 29, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 272

Author:(Lackey) – As Amended Ver:April 15, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY: This bill provides that a person deputized or appointed by the proper authority as a reserve deputy sheriff or a reserve city police officer, is an employee of the county, city, city and county, town, district or other such proper authority for all purposes of the California Fair Employment and Housing Act (FEHA).

FISCAL EFFECT:

1. Minor/absorbable costs to the Department of Fair Employment and Housing as reserve or auxiliary peace officers constitute a small percentage of the workforce and any increase in complaints filed would likely be minimal. 

2. Unknown, potentially significant costs to local governments related to civil litigation. The usual damages paid to employees as a result of discrimination is lost wages. Since reserve and auxiliary officers are not paid for their services, they would likely seek punitive damages and legal fees through the courts. This could result in legal costs to local governments, potentially in the hundreds of thousands of dollars.

COMMENTS:

1. Purpose. According to the author, the purpose of this bill is to protect reserve peace officers under FEHA. By expressly granting employee status to reserve peace officers, this bill would effectively overturn a 2013 California appellate court decision. In Estrada v. City of Los Angeles 218 Cal. App. 4^th 143 (2013), the court held that the plaintiff, a volunteer police reserve officer appointed by the Los Angeles Chief of Police, was not an employee within the meaning of FEHA. The plaintiff had contended that he was an employee because the city provided him with workers' compensation benefits (even though the city was not required to do so by state law.) Yet the court held that providing the plaintiff with workers' compensation coverage did not transform him into an "employee" for purposes of the FEHA. As a result, the plaintiff could not bring an action against the city alleging disability discrimination.

Existing statute does not provide an affirmative definition of employee; rather, it states what is excluded: "'Employee' does not include any individual employed by his or parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility."

The Department of Fair Employment and Housing enacted regulations under FEHA that define an employee as any individual "under the direction and control of an employer under any appointment or contract of hire of apprenticeship, express or implied, oral or written." (2 CCR Section 7286.5 (b).) Although courts in Mendoza and Estrada concluded that an individual must receive some form of compensation in order to be considered an employee, the regulatory definition does not include such a requirement.

Reserve peace officers are appointed by, and under the supervision of, a local law enforcement authority. This bill seeks to clarify that reserve peace officers are, therefore, employees for purposes of FEHA.

2. Prior related legislation. AB 1443 (Skinner), Chapter 302, Statutes of 2014, amended the harassment provisions under FEHA to include unpaid interns and volunteers, meaning that such individuals are now protected from unlawful employment harassment in a manner similar to employees.

Analysis Prepared by: Misty Feusahrens / APPR. / (916) 319-2081

Date of Hearing: April 14, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 272

Author:(Lackey) – As Amended Ver:March 12, 2015

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: California Fair Employment and Housing Act

KEY ISSUE: Should the anti-discrimination protections of the Fair Employment and Housing Act be extended to volunteer reserve and auxiliary peace officers?

SYNOPSIS

The bill would declare that volunteer reserve and auxiliary peace offers are "employees" for purposes of California's Fair Employment and Housing Act (FEHA). FEHA prohibits discrimination in employment on the basis of certain characteristics, including race, gender, sexual orientation, religion, and disability. Although existing law defines "employee" broadly, the courts have generally held that the term "employee" only applies to those who receive compensation for services. Last year's AB 1443 (Chapter 302, Stats. of 2014) provided that the anti-harassment protections of FEHA applied to unpaid interns and volunteers, but the other anti-discrimination provisions of FEHA still do not apply to volunteers. This bill is largely a response to Estrada v. City of Los Angeles, a 2013 appellate court finding that a volunteer reserve police officer is not an employee for purposes of FEHA's anti-discrimination provisions, notwithstanding the fact that the city provided Estrada and other reserve peace officers workers' compensation benefits. As introduced this bill would have added reserve peace officers to the definition of employee in FEHA. However, rather than add reserve peace officers (alone among all volunteers) to the otherwise general definition of employee in FEHA, the author agreed in the Assembly Labor and Employment Committee to achieve the same end by amending the Penal Code section that authorizes reserve and auxiliary peace officers to specify that they are employees for purposes of FEHA. Because of timing considerations, the amendments agreed to in the Assembly Labor and Employment Committee will be formally adopted in this Committee. The analysis reflects those amendments. There is no known opposition to this bill.

SUMMARY: Provides that any person deputized or appointed by the proper authority as a reserve deputy sheriff or a reserve city police officer, is an employee of the county, city, city and county, town, district or other such proper authority for all purposes of the California Fair Employment and Housing Act.

EXISTING LAW:

1. Prohibits, under FEHA, harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave. Also prohibits retaliation for exercising one's right to report or protest such discrimination or harassment. (Government Code Sections 12940, 12945, 12945.2.)

2. Provides for purposes of FEHA that an "employee" does not include any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. (Government Code Section 12926 (c).)

3. Defines employee, pursuant to regulations developed by FEHA, 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." (2 Cal. Code of Regulations Section 7286.5 (b).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: According to the author, "the purpose of this bill is to protect reserve peace officers under FEHA." The author contends that under existing law "there are conflicting definitions when referring to reserve peace officers, and uncertainty as to whether they are volunteers or employees." This bill seeks to remedy this problem by stating unequivocally that reserve peace officers are "employees" for purposes of FEHA and are therefore protected by its anti-discrimination provisions.

By expressly granting employee status to reserve peace officers, this bill would effectively overturn a 2013 California appellate court decision. In Estrada v. City of Los Angeles 218 Cal. App. 4^th 143 (2013), the court held that the plaintiff, a volunteer police reserve officer appointed by the Los Angeles Chief of Police, was not an employee within the meaning of FEHA. The plaintiff had contended that he was an employee because the city provided him with workers' compensation benefits (even though the city was not required to do so by state law.) Yet the court held that providing the plaintiff with workers' compensation coverage did not transform him into an "employee" for purposes of the FEHA. As a result, the plaintiff could not bring an action against the city alleging disability discrimination.

As the court noted in Mendoza v Town of Ross 128 Cal. App. 4^th 625 (2005), the existing statute does not offer much guidance in how to define an "employee" for purposes of FEHA. Indeed, the purported "definition" in existing law does not offer any affirmative definition at all; rather, it simply states what is excluded: "'Employee' does not include any individual employed by his or parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility." (Government Code Section 12926 (c).) Fortunately, the definition of employee in the FEHA statute is not the only one. To implement FEHA, the Department of Fair Employment and Housing enacted regulations that define an employee as any individual "under the direction and control of an employer under any appointment or contract of hire of apprenticeship, express or implied, oral or written." (2 CCR Section 7286.5 (b).) Although courts in Mendoza and Estrada concluded that an individual must receive some form of compensation in order to be considered an employee, the regulatory definition does not, in fact, include such a requirement. Rather, the statute only requires that the individual be "under the direction and control of an employer" and that the individual be under "appointment" or under "contract for hire." Reserve peace officers are appointed by, and under the supervision of, a local law enforcement authority. Not unreasonably, then, this bill will specify that reserve peace officers are employees for purposes of FEHA.

Author to Adopt Amendments Proposed by Assembly Labor and Employment Committee: Although the bill in print seeks to achieve the author's end by amending the definition of "employee" in FEHA, the author agreed in the Assembly Labor and Employment Committee to place the substantive provision in the Penal Code section that authorizes and defines the duties of reserve peace officers. As noted above, the FEHA definition of employee is structured in negative terms; that is, it defines the categories of persons excluded from the definition of employee rather than offering an affirmative definition or listing categories of persons included within the definition. As such, adding reserve peace officers affirmatively to the definition of employee would fit awkwardly within the existing structure. Alternatively, the Assembly Labor and Employment Committee recommended amending the Penal Code section that authorizes reserve peace officers so as to specify that they are employees for purposes of FEHA. Due to timing considerations, the amendment agreed to in the prior Committee (which is detailed below) will be formally adopted in this Committee.

Status of Other Volunteers under FEHA: As noted above, last year's AB 1443 extended the anti-harassment provisions of FEHA – but only those provisions – to unpaid interns and volunteers. This bill will extend all anti-discrimination provisions in FEHA to volunteer reserve peace officers, who perform effectively the same functions as paid employees. However, this raises a significant question as to whether FEHA's anti-discrimination provisions should protect all volunteers who are appointed to their position and perform the same functions as paid employees. This bill focuses on volunteer reserve and auxiliary peace officers whose duties are similar enough to those of paid employees that local jurisdictions often grant them benefits, including Workers' Compensation benefits. But surely reserve peace officers do not constitute the universe of appointed and supervised volunteers who perform the same functions as regular employees. At some point the Legislature may wish to address the desirability and potential consequences of extending FEHA protections to volunteers more generally. This bill, however, responds to a specific court case and accordingly limits itself to a specific category of volunteers who seem to merit FEHA protections.

Arguments in Support: According to the author, this bill would ensure that reserve peace officers are protected under FEHA and would protect against their mistreatment and discrimination within the workplace. The sponsor, the California Reserve Peace Officers Association, argues that despite the fact that reserve peace officers perform "the same duties and functions as full-time peace officers," they are vulnerable to termination, discrimination and harassment that should be viewed as unlawful.

Proposed Author Amendments: Due to timing and scheduling considerations, the amendments agreed to in the Assembly Labor and Employment Committee will be formally adopted in this Committee. The amendment will strike the contents of the bill in print and add a new subdivision (a) (3) to Penal Code Section 830.6 to read as follows:

Any person that is deputized or appointed by the proper authority as a reserve deputy sheriff or a reserve city police officer, and any other person deputized or appointed by the proper authority as a peace officer pursuant to subsection (a) or (b) of this section 830.6, is an employee of the county, city, city and county, town, district or other such proper authority for all purposes of the California Fair Employment and Housing Act, Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code.

REGISTERED SUPPORT / OPPOSITION:

Support

California Reserve Peace Officers Association (sponsor)

Opposition

None on file

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334

Date of Hearing: April 8, 2015

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Roger Hernández, Chair

ABPCA Bill Id:AB 272

Author:(Lackey) – As Amended Ver:March 12, 2015

SUBJECT: California Fair Employment and Housing Act

SUMMARY: Provides that specified reserve peace officers are considered to be "employees" for purposes of the employment discrimination provisions of the Fair Employment and Housing Act.

EXISTING LAW prohibits employment discrimination on the basis 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, sexual orientation, or military and veteran status.

FISCAL EFFECT: Unknown

COMMENTS: The Fair Employment and Housing Act (FEHA) prohibits employment discrimination on the bases of enumerated protected categories. However, the FEHA definition of "employee" (Government Code Section 12926(c)) does not actually define who is an employee under the law; it merely excludes specified individuals from the definition. However, the FEHA regulations define an employee as "[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written."

Therefore, FEHA provides little or no protection to individuals who do not meet the definition of "employee" under the law.

Last year, AB 1443 (Skinner) amended FEHA's harassment provisions to include unpaid interns and volunteers, meaning that such individuals are now protected from unlawful employment harassment in a manner similar to employees. However, AB 1443 was narrowly-tailored and generally did not amend the overall statutory employment discrimination provisions to cover volunteers or unpaid interns¹.

As discussed last year, several state cases have refused to extend FEHA's overall coverage to certain categories of "volunteers."

One of the most notable cases arising under FEHA was 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. However, 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.

More recently, a similar holding was reached in Estrada v. City of Los Angeles, 218 Cal. App. 4^th 143 (2013), a case involving 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.

This bill responds directly to the Estrada decision by specifically providing that specified reserve peace officers are considered to be "employees" for purposes of FEHA.

ARGUMENTS IN SUPPORT

According to the author, this bill would ensure that reserve peace officers are protected under FEHA and would protect against their mistreatment and discrimination within the workplace.

The California Reserve Peace Officers Association supports this bill, arguing that despite the fact that reserve peace officers perform "the same duties and functions as full-time peace officers," they are vulnerable to termination, discrimination and harassment that should be viewed as unlawful.

COMMITTEE STAFF COMMENT

As discussed above, FEHA does not actually define who is an employee for statutory purposes. Instead, the statute defines who is not an employee. Therefore, amending the statute to define employee to include one specific category of individual may have unintended consequences and result in a negative implication that those not specifically defined are somehow excluded from the definition.

Therefore, the author has agreed to add language to the Penal Code, rather than amending FEHA. Specifically a new subdivision (a)(3) to Penal Code Section 830.6 to read as follows:

"Any person that is deputized or appointed by the proper authority as a reserve deputy sheriff or a reserve city police officer, and any other person deputized or appointed by the proper authority as a peace officer pursuant to subsection (a) or (b) of this section 830.6, is an employee of the county, city, city and county, town, district or other such proper authority for all purposes of the California Fair Employment and Housing Act, Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code."

However, due to legislative deadlines, this amendment will be adopted in the Assembly Judiciary Committee, to which this bill is double-referred.

REGISTERED SUPPORT / OPPOSITION:

Support

California Reserve Peace Officers Association (Sponsor)

Opposition

None on file.

Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091