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AB-2879 Service Member Employment Protection Act.(2015-2016)

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AB2879:v96#DOCUMENT

Amended  IN  Assembly  May 27, 2016
Amended  IN  Assembly  April 07, 2016
Amended  IN  Assembly  April 05, 2016

CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION

Assembly Bill
No. 2879


Introduced by Assembly Member Mark Stone
(Coauthors: Assembly Members Chiu and Chiu, Thurmond, and Ting)

February 25, 2016


An act to amend Section 394 of the Military and Veterans Code, relating to service members.


LEGISLATIVE COUNSEL'S DIGEST


AB 2879, as amended, Mark Stone. Service Member Employment Protection Act.
Existing law prohibits a person from discriminating against a member of the military forces because of his or her membership or service, as prescribed. Existing law makes a violation of those provisions a crime. Existing law also provides civil remedies for violations of those provisions.
This bill would prohibit a person from requiring a waiver of the protections afforded under those provisions as a condition of employment, including the right to file and pursue a civil action or complaint, as specified. The bill would prohibit a person from retaliating against a person who refuses to waive his or her rights under those provisions, as prescribed. The bill would require any waiver of the protections afforded under those provisions to be knowing and voluntary, in writing, and expressly not made as a condition of employment, as specified. The bill would require a person seeking to enforce such a that waiver to have the burden of proving that the waiver was knowing and voluntary and not made as a condition of employment. The bill would apply its provisions to any waiver agreement entered into on or after January 1, 2017, including an agreement that requires private arbitration. A violation of these provisions would not constitute a crime. The bill would include a severability clause.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Existing federal law and state law recognizes the need to protect military service members from discrimination in employment. Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), an employer may not deny initial employment, reemployment, retention in employment, promotion, or any employment benefits based on an employee’s military service. Section 394 of the Military and Veterans Code (Section 394), which enacts in state law employment protections that are very similar to USERRA, also prohibits discrimination against service members because of their membership or service in the military. Furthermore, Section 394 prohibits an employer from terminating or prejudicing in any manner a person’s employment because of his or her duties or attendance at military places of drill or instruction for the California National Guard.

(b)In California, key protections in the Military and Veterans Code and the Fair Employment and Housing Act strictly prohibit discrimination on the basis of military and veteran status, and further prohibit any non-job-related inquiry of an employee or applicant’s military and veteran status except that employers may identify members of the military or veterans for the purpose of awarding a veteran’s preference as permitted by law.

(b) It is the policy of the State of California, through key protections in Section 394 and the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), that employers shall not discriminate against an employee or job applicant on the basis of military and veteran status, and furthermore, that employers are prohibited from making any non-job-related inquiry of an employee’s or applicant’s military and veteran status, except in order to identify members of the military or veterans for the purpose of awarding a veteran’s preference as permitted by law.
(c) Because of the importance of these employment protections for the well-being of service members, it is also the policy of the State of California to ensure that all service members have the full benefit of the rights, penalties, remedies, forums, and procedures established to protect service members from discrimination in employment and that service members not be deprived of those rights, penalties, remedies, forums, or procedures through the use of involuntary or coerced waivers.
(d) Nevertheless, service members and reserve members in California have experienced wrongful termination or discrimination in the workplace, in violation of protections under USERRA and Section 394, such as termination when they informed their employers of their need to take time off from work in order to carry out their military reserve duties. Some of these service members have been required to waive their procedural rights under USERRA and Section 394 as a condition of employment.

(d)

(e) Therefore, it is the purpose of this act to ensure that a contract to waive any of the rights, penalties, remedies, forums, or procedures under Section 394 of the Military and Veterans Code, including any provision that has the effect of limiting the full application or enforcement of any right, penalty, remedy, forum, or procedure available under this section, is a matter of voluntary consent, not coercion.

(e)

(f) This act shall be known, and may be cited, as the Service Member Employment Protection Act.

SEC. 2.

 Section 394 of the Military and Veterans Code is amended to read:

394.
 (a) No person shall discriminate against any officer, warrant officer, or enlisted member of the military or naval forces of the state or of the United States because of that membership. No member of the military forces shall be prejudiced or injured by any person, employer, or officer or agent of any corporation, company, or firm with respect to that member’s employment, position, or status or be denied or disqualified for employment by virtue of membership or service in the military forces of this state or of the United States.
(b) No officer or employee of the state, or of any county, city and county, municipal corporation, or district shall discriminate against any officer, warrant officer, or enlisted member of the military or naval forces of the state or of the United States because of that membership. No member of the military forces shall be prejudiced or injured by any officer or employee of the state, or of any county, city and county, municipal corporation, or district with respect to that member’s employment, appointment, position, or status or be denied or disqualified for or discharged from that employment or position by virtue of membership or service in the military forces of this state or of the United States.
(c) No person shall prohibit or refuse entrance to any officer or enlisted member of the Army or Navy of the United States or of the military or naval forces of this state into any public entertainment or place of amusement or into any of the places described in Sections 51 and 52 of the Civil Code because that member wears the uniform of the organization to which he or she belongs.
(d) No employer or officer or agent of any corporation, company, or firm, or other person, shall discharge any person from employment because of the performance of any ordered military duty or training or by reason of being an officer, warrant officer, or enlisted member of the military or naval forces of this state, or hinder or prevent that person from performing any military service or from attending any military encampment or place of drill or instruction he or she may be called upon to perform or attend by proper authority; prejudice or harm him or her in any manner in his or her employment, position, or status by reason of performance of military service or duty or attendance at military encampments or places of drill or instruction; or dissuade, prevent, or stop any person from enlistment or accepting a warrant or commission in the California National Guard or Naval Militia by threat or injury to him or her in respect to his or her employment, position, status, trade, or business because of enlistment or acceptance of a warrant or commission.
(e) (1) No private employer or officer or agent of any corporation, company, or firm, or other person, shall restrict or terminate any collateral benefit for employees by reason of an employee’s temporary incapacitation incident to duty in the California National Guard or Naval Militia. As used in this subdivision, “temporary incapacitation” means any period of incapacitation of 52 weeks or less.
(2) As used in this subdivision, “benefit” includes, but is not limited to, health care which may be continued at the employee’s expense, life insurance, disability insurance, and seniority status.
(f) No person who provides lending or financing shall discriminate against any person with respect to the terms of a loan or financing, including, but not limited to, the finance charge, based on that person’s membership in the military or naval forces of this state or of the United States. With respect to any loan or credit transaction covered by Section 670 of Public Law 109-364 and Section 232 of Title 32 of the Code of Federal Regulations, as published on August 31, 2007, in Volume 72 of the Federal Register, a person that does not market or extend those transactions to covered borrowers shall not be in violation of this section. For purposes of this section, a covered borrower has the same meaning as provided for in Section 232 of Title 32 of the Code of Federal Regulations, as published on August 31, 2007, in Volume 72 of the Federal Register.
(g) (1) A person shall not require another person to waive any legal right, penalty, remedy, forum, or procedure for a violation of this section, as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner, state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2) A person shall not threaten, retaliate, or discriminate against another person on the basis that the other person refuses to waive any legal right, penalty, remedy, forum, or procedure for a violation of this section, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner, state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(3) Except for any legal right, penalty, forum, or procedure that state or federal law prohibits from being waived, any waiver of any legal right, penalty, remedy, forum, or procedure for a violation of this section, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner, state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity shall be knowing and voluntary, and in writing, and expressly not made as a condition of employment.
(4) Any waiver of any legal right, penalty, remedy, forum, or procedure for a violation of this section that is required as a condition of employment shall be deemed involuntary, unconscionable, against public policy, and unenforceable. Nothing in this subdivision shall affect the enforceability or validity of any other provision of the contract.
(5) Any person who seeks to enforce a waiver of any legal right, penalty, remedy, forum, or procedure for a violation of this section shall have the burden of proving that the waiver was knowing and voluntary and not made as a condition of employment.
(6) This section shall apply to any agreement to waive any legal right, penalty, remedy, forum, or procedure for a violation of this code, section, including an agreement to accept private arbitration, entered into, altered, modified, renewed, or extended on or after January 1, 2017.
(h) Any person violating subdivision (a), (b), (c), (d), (e), or (f) of this section is guilty of a misdemeanor. In addition to injunctive relief and any other available remedies, any person violating any of the provisions of this section shall be liable for actual damages and reasonable attorney’s fees incurred by the injured party.
(i) The remedies provided for in this section are not intended to be exclusive but are in addition to the remedies provided for in other laws, including Sections 51 and 52 of the Civil Code.
(j) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.