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SB-396 Employment: gender identity, gender expression, and sexual orientation.(2017-2018)

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Date Published: 09/20/2017 09:00 PM
SB396:v94#DOCUMENT

Enrolled  September 20, 2017
Passed  IN  Senate  September 15, 2017
Passed  IN  Assembly  September 14, 2017
Amended  IN  Assembly  September 07, 2017
Amended  IN  Assembly  August 31, 2017
Amended  IN  Assembly  June 28, 2017
Amended  IN  Senate  April 04, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 396


Introduced by Senator Lara
(Coauthor: Assembly Member Thurmond)

February 15, 2017


An act to amend Sections 12950 and 12950.1 of the Government Code, and to amend Sections 14005 and 14012 of the Unemployment Insurance Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


SB 396, Lara. Employment: gender identity, gender expression, and sexual orientation.
The California Fair Employment and Housing Act (FEHA) makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employer’s knowledge. FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill would additionally require employers with 50 or more employees to include, as a component of that prescribed training and education for supervisors, training inclusive of harassment based on gender identity, gender expression, and sexual orientation.
FEHA requires each employer to post a poster on discrimination in employment, which includes information relating to the illegality of sexual harassment, in a prominent and accessible location in the workplace.
The bill would also require each employer to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace.
The California Workforce Innovation and Opportunity Act makes programs and services available to individuals with employment barriers and creates a board, composed of the Governor and Governor-appointed members who represent specified interests, including representatives of the state workforce, to carry out specified functions in furtherance of that act.
This bill would expand the definition of an “individual with employment barriers” to include transgender and gender nonconforming individuals. The bill also would authorize the appointments to the board representing the state workforce to include representatives of community-based organizations that serve transgender and gender nonconforming individuals.
This bill would incorporate additional changes to Section 14012 of the Unemployment Insurance Code proposed by AB 957 to be operative only if this bill and AB 957 are enacted and this bill is enacted last.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 12950 of the Government Code is amended to read:

12950.
 In addition to employer responsibilities set forth in subdivisions (j) and (k) of Section 12940 and in rules adopted by the department and the council, every employer shall act to ensure a workplace free of sexual harassment by implementing the following minimum requirements:
(a) (1)  The department shall amend its current poster on discrimination in employment to include information relating to the illegality of sexual harassment. This amended poster shall be distributed to employers when the supply of the current poster is exhausted. One copy of the amended poster shall be provided by the department to an employer upon request. The amended poster shall be available at each office of the department, and shall be mailed if the request includes a self-addressed envelope with postage affixed. Multiple copies of the amended poster shall be made available online by the Department of Fair Employment and Housing. Each employer shall post the amended poster in a prominent and accessible location in the workplace.
(2) Post a poster developed by the department regarding transgender rights in a prominent and accessible location in the workplace.
(b) Each employer shall obtain from the department its information sheet on sexual harassment, which the department shall make available to employers for reproduction and distribution to employees. One copy of the information sheet shall be provided by the department to an employer upon request. The information sheets shall be available at each office of the department, and shall be mailed if the request includes a self-addressed envelope with postage affixed. Multiple copies of the information sheet shall be made available online by the Department of Fair Employment and Housing. Each employer shall distribute this information sheet to its employees, unless the employer provides equivalent information to its employees that contains, at a minimum, components on the following:
(1) The illegality of sexual harassment.
(2) The definition of sexual harassment under applicable state and federal law.
(3) A description of sexual harassment, utilizing examples.
(4) The internal complaint process of the employer available to the employee.
(5) The legal remedies and complaint process available through the department.
(6) Directions on how to contact the department.
(7) The protection against retaliation provided by Title 2 of the California Code of Regulations for opposing the practices prohibited by this article or for filing a complaint with, or otherwise participating in an investigation, proceeding, or hearing conducted by, the department or the council.
(c) The information sheet or information required to be distributed to employees pursuant to subdivision (b) shall be delivered in a manner that ensures distribution to each employee, such as including the information sheet or information with an employee’s pay.
(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the information sheet or information required to be distributed pursuant to this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer’s compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
(e) If an employer violates the requirements of this section, the department may seek an order requiring the employer to comply with these requirements.

SEC. 2.

 Section 12950.1 of the Government Code is amended to read:

12950.1.
 (a)  An employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position. An employer covered by this section shall provide sexual harassment training and education to each supervisory employee in California once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
(b) An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).
(c) An employer shall also provide training inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision (a). The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.
(d) The state shall incorporate the training required by subdivisions (a) to (c), inclusive, into the 80 hours of training provided to all new supervisory employees pursuant to subdivision (b) of Section 19995.4, using existing resources.
(e) Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer’s compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
(f) If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.
(g) The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.
(h) (1) For purposes of this section only, “employer” means any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.
(2) For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

SEC. 3.

 Section 14005 of the Unemployment Insurance Code is amended to read:

14005.
 For purposes of this division:
(a) “Board” means the California Workforce Development Board.
(b) “Agency” means the Labor and Workforce Development Agency.
(c) “Career pathways,” “career ladders,” or “career lattices” are an identified series of positions, work experiences, or educational benchmarks or credentials with multiple access points that offer occupational and financial advancement within a specified career field or related fields over time. “Career pathways,” “career ladders,” and “career lattices” offer combined programs of rigorous and high-quality education, training, and other services that do all of the following:
(1) Align with the skill needs of industries in the economy of the state or regional economy involved.
(2) Prepare an individual to be successful in any of a full range of secondary or postsecondary education options, including apprenticeships registered under the National Apprenticeship Act of 1937 (29 U.S.C. Sec. 50 et seq.), except as in Section 3226 of Title 29 of the United States Code.
(3) Include counseling to support an individual in achieving the individual’s education and career goals.
(4) Include, as appropriate, education offered concurrently with and in the same context as workforce preparation activities and training for a specific occupation or occupational cluster.
(5) Organize education, training, and other services to meet the particular needs of an individual in a manner that accelerates the educational and career advancement of the individual to the extent practicable.
(6) Enable an individual to attain a secondary school diploma or its recognized equivalent, and at least one recognized postsecondary credential.
(7) Help an individual enter or advance within a specific occupation or occupational cluster.
(d) “Cluster-based sector strategies” mean methods of focusing workforce and economic development on those sectors that have demonstrated a capacity for economic growth and job creation in a particular geographic area.
(e) “Data driven” means a process of making decisions about investments and policies based on systematic analysis of data, which may include data pertaining to labor markets.
(f) “Economic security” means, with respect to a worker, earning a wage sufficient to support a family adequately, and, over time, to save for emergency expenses and adequate retirement income, based on factors such as household size, the cost of living in the worker’s community, and other factors that may vary by region.
(g) “Evidence-based” means making use of policy research as a basis for determining best policy practices. Evidence-based policymakers adopt policies that research has shown to produce positive outcomes, in a variety of settings, for a variety of populations over time. Successful, evidence-based programs deliver quantifiable and sustainable results. Evidence-based practices differ from approaches that are based on tradition, belief, convention, or anecdotal evidence.
(h) “High-priority occupations” mean occupations that have a significant presence in a targeted industry sector or industry cluster, are in demand, or projected to be in demand, by employers, and pay or lead to payment of a wage that provides economic security.
(i) (1) “In-demand industry sector or occupation” means either of the following:
(A) An industry sector that has a substantial current or potential impact, including through jobs that lead to economic self-sufficiency and opportunities for advancement, on the state, regional, or local economy, as appropriate, and that contributes to the growth or stability of other supporting businesses, or the growth of other industry sectors.
(B) An occupation that currently has or is projected to have a number of positions, including positions that lead to economic self-sufficiency and opportunities for advancement, in an industry sector so as to have a significant impact on the state, regional, or local economy, as appropriate.
(2) The determination of whether an industry sector or occupation is “in-demand” under this subdivision shall be made by the board or local board, or through the regional planning process in which local boards participate under the Workforce Innovation and Opportunity Act, as appropriate, using state and regional business and labor market projections, including the use of labor market information.
(j) “Individual with employment barriers” means an individual with any characteristic that substantially limits an individual’s ability to obtain employment, including indicators of poor work history, lack of work experience, or access to employment in nontraditional occupations, long-term unemployment, lack of educational or occupational skills attainment, dislocation from high-wage and high-benefit employment, low levels of literacy or English proficiency, disability status, or welfare dependency, including members of all of the following groups:
(1) Displaced homemakers.
(2) Low-income individuals.
(3) Indians, Alaska Natives, and Native Hawaiians, as those terms are defined in Section 3221 of Title 29 of the United States Code.
(4) Individuals with disabilities, including youths who are individuals with disabilities.
(5) Older individuals.
(6) Ex-offenders.
(7) Homeless individuals, as defined in Section 14043e-2(6) of Title 42 of the United States Code, or homeless children and youths, as defined in Section 11434a(2) of Title 42 of the United States Code.
(8) Youth who are in, or have aged out of, the foster care system.
(9) Individuals who are English language learners, individuals who have low levels of literacy, and individuals facing substantial cultural barriers.
(10) Eligible migrant and seasonal farmworkers, as defined in Section 3322(i) of Title 29 of the United States Code.
(11) Individuals within two years of exhausting lifetime eligibility under Part A of Title IV of the Social Security Act (42 U.S.C. Sec. 601 et seq.).
(12) Single parents, including single, pregnant women.
(13) Long-term unemployed individuals.
(14) Transgender and gender nonconforming individuals.
(15) Any other groups as the Governor determines to have barriers to employment.
(k) “Industry cluster” means a geographic concentration or emerging concentration of interdependent industries with direct service, supplier, and research relationships, or independent industries that share common resources in a given regional economy or labor market. An industry cluster is a group of employers closely linked by common product or services, workforce needs, similar technologies, and supply chains in a given regional economy or labor market.
(l) “Industry or sector partnership” means a workforce collaborative, convened or acting in partnership with the board or a local board, that does the following:
(1) Organizes key stakeholders in an industry cluster into a working group that focuses on the shared goals and human resources needs of the industry cluster and that includes, at the appropriate stages of development of the partnership:
(A) Representatives of multiple businesses or other employers in the industry cluster, including small and medium-sized employers when practicable.
(B) One or more representatives of a recognized state labor organization or central labor council, or another labor representative, as appropriate.
(C) One or more representatives of an institution of higher education with, or another provider of, education or training programs that support the industry cluster.
(2) The workforce collaborative may include representatives of any of the following:
(A) State or local government.
(B) State or local economic development agencies.
(C) State boards or local boards, as appropriate.
(D) A state workforce agency or entity providing employment services.
(E) Other state or local agencies.
(F) Business or trade associations.
(G) Economic development organizations.
(H) Nonprofit organizations, community-based organizations, or intermediaries.
(I) Philanthropic associations.
(J) Industry associations.
(K) Other organizations, as determined to be necessary by the members comprising the industry sector or partnership.
(m) “Industry sector” means those firms that produce similar products or provide similar services using somewhat similar business processes, and are closely linked by workforce needs, within a regional labor market.
(n) “Local labor federation” means a central labor council that is an organization of local unions affiliated with the California Labor Federation or a local building and construction trades council affiliated with the State Building and Construction Trades Council of California.
(o) “Sector strategies” means methods of prioritizing investments in competitive and emerging industry sectors and industry clusters on the basis of labor market and other economic data indicating strategic growth potential, especially with regard to jobs and income, and exhibit the following characteristics:
(1) Focus workforce investment in education and workforce training programs that are likely to lead to jobs providing economic security or to an entry-level job with a well-articulated career pathway into a job providing economic security.
(2) Effectively boost labor productivity or reduce business barriers to growth and expansion stemming from workforce supply problems, including skills gaps and occupational shortages by directing resources and making investments to plug skills gaps and provide education and training programs for high-priority occupations.
(3) May be implemented using articulated career pathways or lattices and a system of stackable credentials.
(4) May target underserved communities, disconnected youths, incumbent workers, and recently separated military veterans.
(5) Frequently are implemented using industry or sector partnerships.
(6) Typically are implemented at the regional level where sector firms, those employers described in subdivisions (j) and (l), often share a common labor market and supply chains. However, sector strategies may also be implemented at the state or local level depending on sector needs and labor market conditions.
(p) “Workforce Innovation and Opportunity Act of 2014” means the federal act enacted as Public Law 113-128.
(q) (1) “Earn and learn” includes, but is not limited to, a program that does either of the following:
(A) Combines applied learning in a workplace setting with compensation allowing workers or students to gain work experience and secure a wage as they develop skills and competencies directly relevant to the occupation or career for which they are preparing.
(B) Brings together classroom instruction with on-the-job training to combine both formal instruction and actual paid work experience.
(2) “Earn and learn” programs include, but are not limited to, all of the following:
(A) Apprenticeships.
(B) Preapprenticeships.
(C) Incumbent worker training.
(D) Transitional and subsidized employment, particularly for individuals with barriers to employment.
(E) Paid internships and externships.
(F) Project-based compensated learning.

SEC. 4.

 Section 14012 of the Unemployment Insurance Code is amended to read:

14012.
 The board shall be appointed by the Governor to assist in the development of the State Plan and to carry out other functions, as described in Section 14103. The board shall be comprised of the Governor and representatives from the following categories:
(a) Two members of each house of the Legislature, appointed by the appropriate presiding officer of each house.
(b) A majority of board members shall be representatives of business who:
(1) Are owners of businesses, chief executives or operating officers of businesses, and other business executives or employers with optimum policymaking or hiring authority, who, in addition, may be members of a local board described in Section 3122(b)(2)(A)(i) of Title 29 of the United States Code.
(2) Represent businesses, including small businesses, or organizations representing businesses that include high-quality, work-relevant training and development in in-demand industry sectors or occupations in the state.
(3) Are appointed from a group of individuals nominated by state business organizations and business trade associations.
(c) (1) Not less than 20 percent of board members shall be representatives of the workforce within the state, including representatives of labor organizations nominated by state labor federations, who shall not be less than 15 percent of the board membership and who shall include at least one representative that is a member of a labor organization or a training director, from a joint labor-management apprenticeship program, or if no such joint program exists in the state, such a representative of an apprenticeship program in the state.
(2) Representatives appointed pursuant to this subdivision may include:
(A) Representatives of community-based organizations that have demonstrated experience and expertise in addressing the employment, training, or education needs of individuals with barriers to employment, including organizations that serve veterans, organizations that provide or support competitive, integrated employment for individuals with disabilities, and organizations that serve transgender and gender nonconforming individuals.
(B) Representatives of organizations that have demonstrated experience and expertise in addressing the employment, training, or education needs of eligible youth, including representatives of organizations that serve out-of-school youth.
(d) The balance of board members:
(1) Shall include representatives of government that are lead state officials with primary responsibility for the core programs and shall include chief elected officials, collectively representing cities, counties, and cities and counties where appropriate.
(2) May include other representatives and officials as the Governor may designate, like any of the following:
(A) State agency officials from agencies that are one-stop partners, not specified in paragraph (1), including additional one-stop partners whose programs are covered by the State Plan, if any.
(B) State agency officials responsible for economic development or juvenile justice programs in the state.
(C) Individuals who represent an Indian tribe or tribal organization, as those terms are defined in Section 3221(b) of Title 29 of the United States Code.
(D) State agency officials responsible for education programs in the state, including chief executive officers of community colleges and other institutions of higher education.
(e) Other requirements of board membership shall include:
(1) The Governor shall select a chairperson for the board from among the representatives described in subdivision (b).
(2) The members of the board shall represent diverse geographic areas of the state, including urban, rural, and suburban areas.

SEC. 4.5.

 Section 14012 of the Unemployment Insurance Code is amended to read:

14012.
 The board shall be appointed by the Governor to assist in the development of the State Plan and to carry out other functions, as described in Section 14103. The board shall be comprised of the Governor and representatives from the following categories:
(a) Two members of each house of the Legislature, appointed by the appropriate presiding officer of each house.
(b) A majority of board members shall be representatives of business who:
(1) Are owners of businesses, chief executives or operating officers of businesses, and other business executives or employers with optimum policymaking or hiring authority, who, in addition, may be members of a local board described in Section 3122(b)(2)(A)(i) of Title 29 of the United States Code.
(2) Represent businesses, including small businesses, or organizations representing businesses that include high-quality, work-relevant training and development in in-demand industry sectors or occupations in the state.
(3) Are appointed from a group of individuals nominated by state business organizations and business trade associations.
(c) (1) Not less than 20 percent of board members shall be representatives of the workforce within the state, including representatives of labor organizations nominated by state labor federations, who shall not be less than 15 percent of the board membership and who shall include at least one representative that is a member of a labor organization or a training director, from a joint labor-management apprenticeship program, or if no such joint program exists in the state, such a representative of an apprenticeship program in the state.
(2) Representatives appointed pursuant to this subdivision may include:
(A) Representatives of community-based organizations that have demonstrated experience and expertise in addressing the employment, training, or education needs of individuals with barriers to employment, including organizations that serve veterans, organizations that provide or support competitive, integrated employment for individuals with disabilities, and organizations that serve transgender and gender nonconforming individuals.
(B) Representatives of organizations that have demonstrated experience and expertise in addressing the employment, training, or education needs of eligible youth, including representatives of organizations that serve out-of-school youth.
(d) The balance of board members:
(1) Shall include representatives of government that are lead state officials with primary responsibility for the core programs and shall include chief elected officials, collectively representing cities, counties, and cities and counties where appropriate.
(2) May include other representatives and officials as the Governor may designate, like any of the following:
(A) State agency officials from agencies that are one-stop partners, not specified in paragraph (1), including additional one-stop partners whose programs are covered by the State Plan, if any.
(B) State agency officials responsible for economic development or juvenile justice programs in the state.
(C) Individuals who represent an Indian tribe or tribal organization, as those terms are defined in Section 3221(b) of Title 29 of the United States Code.
(D) State agency officials responsible for education programs in the state, including chief executive officers, or their designees, of institutions of higher education, including, but not limited to, the California Community College system, the California State University system, the University of California system, and their respective individual campuses.
(e) Other requirements of board membership shall include:
(1) The Governor shall select a chairperson for the board from among the representatives described in subdivision (b).
(2) The members of the board shall represent diverse geographic areas of the state, including urban, rural, and suburban areas.

SEC. 5.

 Section 4.5 of this bill incorporates amendments to Section 14012 of the Unemployment Insurance Code proposed by both this bill and Assembly Bill 957. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2018, (2) each bill amends Section 14012 of the Unemployment Insurance Code, and (3) this bill is enacted after Assembly Bill 957, in which case Section 4 of this bill shall not become operative.