Racial Violence and Workers' Compensation: Calif. Assemblymember Mariko Yamada on Her Assembly Bill 1093 - "Taneka's Law"

Taneka Talley, a 26-year-old African-American woman, was stabbed to death while at work in a Dollar Tree Store in Fairfield, California, on the morning of March 29, 2006.  She left behind an eight-year-old son, Larry.  The convicted killer, Tommy Joe Thompson, who is white, admitted he attacked Talley because she was black.  Talley's mother filed a claim for workers' compensation death benefits on behalf of Talley's son, contending that her daughter's death arose out of and occurred in the course of her employment.  Initially, Dollar Tree's insurer denied the claim, contending that Thompson's attack was unrelated to Talley's status as an employee, that his motives were entirely personal, i.e., motivated solely by race.  The company later said it would pay full benefits.

Assemblymember Yamada'a bill, introduced in response to Ms. Talley's murder, would amend California Labor Code § 3600, which obligates employers to provide workers' compensation benefits "for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death."  The California Workers' Compensation Appeals Board and California courts have interpreted this provision to deny benefits in cases of "purely personal" injuries or deaths occurring in the workplace.  The bill adds the following language to California Labor Code § 3600:

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Workers' Comp Law Center (WCLC): What argument did the insurance carrier give to initially refuse workers' comp death benefits to Taneka Talley's son?

Assemblymember Mariko Yamada (MY): A psychiatrist testified at Mr. Thompson's competency hearing that Mr. Thompson told him that he woke up that morning wanting to kill a black person and that Ms. Talley was the first one he saw.  The court did not charge Mr. Thompson with a hate crime.  However, the worker's compensation insurer for The Dollar Tree, Ace USA, through its third-party administrator, Specialty Risk Services (SRS), took the position that Ms. Talley's son was not entitled to workers' compensation benefits because her death was not "because of work."  According to SRS, Ms. Talley's death was the result of the personal connection she had with her killer – her killer's hatred of the color of her skin.

WCLC: You've recently introduced Assembly Bill 1093, known as "Taneka's Law."  How will this bill remedy the situation?

MY: AB 1093 adds language to the California Labor Code to prohibit denial of workers' compensation benefits based solely on an assailant's hatred of an employee-victim of a protected class.  Specifically, AB 1093 states that, for purposes of determining whether to grant or deny a workers' compensation claim, if an employee is injured or killed by a third party in the course of the employee's employment, no personal relationship or personal connection will be deemed  to exist between the employee and the third party based only on a determination that the third party injured or killed the employee solely because of the third party's personal beliefs relating to his or her perception of the employee's sex, race, color, religion, ancestry, national origin, martial status, or sexual orientation.

WCLC: What is your response to critics of the bill who are saying:

a. This "injury" did not arise from the work the victim was doing and was not a hazard to which others outside the workplace could not have also been exposed.

b. Many violent workplace deaths arise out of personal animosities.  The only work-relatedness is that such deaths occurred on premises.  The proposed language in AB 1093 takes the remedy far beyond the "arising out of and course of employment" test.

MY: In order to prove that a claim is compensable, the injury or death must have happened at the workplace and arise out of the workplace, i.e., be related to employment.  Case law holds that, when injury or death is personally motivated and there is absolutely no connection to the job, the injury or death is not compensable.  In the majority of cases finding that the injury or death did not arise out of employment, there was a personal relationship between the injured or killed worker and the assailant that arose outside of the workplace.  The workplace merely set the stage for the injury or death.  The facts of these cases have involved domestic violence and robberies in which the assailant targeted the worker outside of employment – there was absolutely no contribution of the employment involved.

In the Taneka Talley case, Ms. Talley, an African-American employee, was working at her place of employment engaged in her work duties, when Tommy Joe Thompson stabbed her in her heart and she died shortly thereafter.  A psychiatrist testified at Mr. Thompson's competency hearing that Mr. Thompson told him that he woke up that morning wanting to kill a black person and that Ms. Talley was the first person he saw. The court did not charge Mr. Thompson with a hate crime.  However, the insurance company, Ace USA, through its third-party administrator SRS, took the position that Ms. Talley was killed because of her race and the personal motive of her killer, which was a personal factor.  Therefore, her son was not entitled to any death benefits due under workers' compensation.

The employer and insurer cited a case to support their position, State Compensation Ins. Fund v. Workers' Compensation Appeals Board (Vasquez de Vargas) (1982) 133 Cal. App. 3d 643.  In this case, two Mexican employees were shot and killed in their bunkhouse.  The trial judge found the deaths compensable.  The defendants appealed, and the 5th District Court of Appeal overturned the decision, finding that the motive for the killing was personal.  No evidence was presented that the employment contributed in any way to the deaths.  Salvador Vargas and Miguel Castellanos were killed while sleeping in a bunkhouse located on their employer's premises.  The employer provided the accommodations to the men as part of their compensation.  Vargas and Castellanos met their killers at a garage sale outside the scope of the victims' employment.  They discussed selling a car to their killers.  Castellanos went to the killers' residence to collect a check for the car and left.  Later, the killers decided to rob them.  They discussed how easy it would be to "blow away Mexicans," and one of them commented he could "blow away niggers and Mexicans."  He also discussed that he had seen Castellanos with a big wad of money.  The killers found Vargas and Castellanos at the bunkhouse and shot and killed them.  The appellate court found that there was a personal motive behind the killings and did not find any connection between the victims' employment and their deaths.  The court stated, "In the context of workers' compensation, an injury which grows out of a personal grievance between an injured employee and a third party does not arise out of employment, for purposes of determining whether it is compensable, if the assault occurred merely by chance during working hours at the place of employment, or if the employer's premises do not place the injured employee in a peculiarly dangerous position.  Thus, when a third party intentionally injures an employee and there is some personal motivation or grievance, there must be some work connection to establish compensability."  The court also stated that the Workers' Compensation Appeals Board in this case "ignored the racial aspect of the killings, which could cut off causation between employment and the deaths."  From this dictum that a racial aspect of the killings could cut off causation between employment and the deaths, the employer and insurer in the Talley case inferred that, because the killing may have been racially motivated, a personal connection is established and, thus, her death is not compensable.  The insurer was trying to construe the dictum as a holding, arguing that a "personal relationship" exists BECAUSE there was one-sided "personal motivation" on the part of the killer.  It's not just because of the victim's race or gender but also the personal motivation of the killer.

In the Vasquez de Vargas case, there was clearly a personal relationship between the killers and the employees that developed outside the employees' employment.  However, the idea that the personal motivation of Taneka's killer amounts to a personal relationship or connection, even though the two had never met and did not know each other, stretches the personal relationship exclusion, is troubling, and needs clarification.  The Dollar Tree attempted to use vague "personal motivation" case law to deny a death benefits claim.  If a person's race or other characteristic and the hate motivation of a third-party unknown to the employee-victim amounts to a personal relationship developed outside the workplace – that narrow exception in California's "no fault" workers' compensation system – then any injury or death at the workplace motivated by hate for a personal characteristic, including immutable characteristics, could be denied.  The argument could be used to deny benefits to someone who was attacked or killed because of their hair color, their weight, or because of their occupation – for example, a police officer killed solely because he or she was a police officer.  The expansion of that narrow exception to the "no fault" provisions of workers' compensation to include a hate-motivated killing of an employee challenges the no-fault provisions of the system.

AB 1093 takes a narrow approach to resolving the vagueness in the law by providing that the court cannot deny a claim "based only on a determination that the third party injured or killed the employee solely because of the third party's beliefs…."  This language allows an employer to argue that there was an outside-of-work relationship that caused the injury or death, even if there is evidence of hate motivation based on a protected characteristic.  In addition, a random injury or killing of an employee remains compensable, and any motivation an employer or insurer might have for relying on the vagueness of case law is removed.

WCLC: What is your response to this argument concerning the social policy of workers' compensation?

In a society that produces the kind of racial hatred that Taneka Talley's killer had, the financial loss (which, of course, says nothing of the terrible emotional pain) should not be left to fall exclusively on Ms. Talley's family.  Moreover, society operates to create a labor pool of relatively uneducated, often non-white, young people and to place them in low-wage jobs in often-dangerous, vulnerable locations in stores such as Dollar Tree, enterprises whose owners never have to face the sorts of dangers that got Taneka Talley killed.  Thus, in the absence of a better alternative, requiring such employers to bear the costs of such fatal attacks through their workers' compensation insurance is an acceptable social policy.

MY: Workers' compensation is a social system for the protection of workers and employers.  Prior to workers' compensation, the only source of compensation for an injured employee or his or her family was through the courts.  Workers had to prove employer negligence in court, and very few workers could afford to go to court.  Those workers who could afford a lawsuit had to overcome the common defenses against charges of negligence, which were difficult to overcome.  The result was that the courts held very few employers responsible for injuries or death.  In addition, awards were unpredictable, ranging from too little to more than the employer could ever pay.   California mandates workers' compensation benefits irrespective of whether the business is at fault.  The system is based on a "trade-off" between the worker and the employer.  Employees receive prompt medical care and prescribed death benefits for on-the-job injuries, no matter who was at fault and, in return, cannot sue their employers over their injuries.

The issue is what is an on-the-job injury?  Ms. Talley was performing her work duties when she was killed.  If Ms. Talley had not been at work that day, she would be alive.  This is true for any accidental death.  Had the worker not been on the job, he or she would not have died.  Some employers and insurers would like to return to the days when employees had to prove employer negligence in court.

WCLC: What is the current status of AB 1093?  Do you expect bipartisan support for the bill in both the House and the Senate?

MY: AB 1093 unanimously passed the Assembly Committee on Insurance and Assembly Floor, receiving bipartisan support.  The bill has moved to the Senate, where I expect it to pass and go to the Governor's office for his signature.  I believe the Governor will support the narrow approach I have taken to clarify existing law, and I have minimal opposition.

WCLC: Has Governor Schwarzenegger given you any indication as to whether he supports the bill?

MY: No. I will approach the Governor when the bill is in the Senate.

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Addendum: On May 28, 2009, there was an 80-0 unanimous vote on the Assembly floor for AB 1093. 

Addendum: On August 27, 2009, the Senate passed AB 1093 by a vote of 29-4.

Addendum: On Sept. 4, 2009, the bill was enrolled and sent to the Governor.