CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Assembly Bill No. 1788Introduced by Assembly Members Cunningham and Valladares(Coauthor: Assembly Member Lackey)February 03, 2022 An act to add Section 52.65 to the Civil Code, relating to sex trafficking. LEGISLATIVE COUNSEL'S DIGESTAB 1788, as introduced, Cunningham. Sex trafficking: hotels: constructive knowledge: civil penalty.Existing law requires hotels, as defined, to provide at least 20 minutes of training to their staff on how to recognize human trafficking as it pertains specifically to the hotel sector. Existing law does not create liability against a hotel or its employees for the lack of reporting a human trafficking case.This bill would allow civil penalties to be imposed against a hotel, as defined, if a supervisory employee, as defined, of the hotel knew or should have known of sex trafficking activities, as defined, that occurred within the hotel and failed to report to law enforcement, as specified, or if any employee of that hotel knowingly benefited from participating in a venture that the employee knew or should have known consisted of sex trafficking activity.This bill would authorize a city, county, or city and county attorney to seek equitable relief, or to seek a civil penalty of $1,000 for the first occurrence, $3,000 for a 2nd occurrence within the same calendar year, and $5,000 for a 3rd and any subsequent occurrence of sex trafficking within the same calendar year. Against particularly egregious offenders, this bill would authorize a court to consider specified factors and exercise its discretion to increase the amount of the civil penalty, not to exceed $10,000, for any 4th or subsequent occurrence.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 52.65 is added to the Civil Code, immediately following Section 52.6, to read:52.65. (a) A hotel, as defined in subdivision (a) of Section 1861.1, is in violation of this section, and subject to civil penalties, if either or both of the following conditions are met:(1) Sex trafficking activity occurred in the hotel, a supervisory employee of the hotel knew or should have known of the activity and of the nature of the activity, and the supervisory employee of the hotel, who knew or should have known of the activity, failed to file an official report of the sex trafficking activity with law enforcement within 24 hours.(2) An employee of the hotel knowingly benefited, financially or by receiving anything of value, by participating in a venture that the employee knew or should have known consisted of sex trafficking.(b) If there is reasonable cause to believe there has been a violation pursuant to subdivision (a), a city, county, or city and county attorney may bring a civil action for injunctive and other equitable relief. A city, county, or city and county attorney that brings a civil action under this section may also seek civil penalties in the amount of one thousand dollars ($1,000) for the first occurrence in a calendar year, three thousand dollars ($3,000) for the second occurrence within the same calendar year, and five thousand dollars ($5,000) for the third and any subsequent occurrence within the same calendar year.(c) If, after a hearing in open court, the court determines the respondent to be an egregious offender, the court may exercise its discretion to increase the amount of the civil penalty, not to exceed ten thousand dollars ($10,000), for any fourth or subsequent occurrence, considering all of the following factors:(1) The respondents culpability.(2) The relationship between the harm and the penalty.(3) The penalties imposed for similar conduct in similar statutes.(4) The respondents ability to pay.(d) The lack of reporting of a sex trafficking case that occurs in a hotel shall not, by itself, result in the liability of an employer or employee of that establishment to the sex trafficking victim or victims in the case in question or to any other party.(e) No liability for civil penalties shall arise under this section against a hotel employee.(f) Violation of this section, by itself, shall not result in criminal liability against the hotel.(g) The primary purpose of this section is to provide additional tools to encourage or compel hotels to take appropriate action necessary to prevent sex trafficking activity from occurring within their establishments. Nothing in this section is intended to affect criminal or civil liability that may arise pursuant to other provisions of law.(h) For the purposes of this section, the following terms shall have the following definitions:(1) Sex trafficking means human trafficking for the purposes of engaging in a commercial sex act as set forth in subdivision (c) of Section 236.1 of the Penal Code.(2) Supervisory employee means any individual, regardless of the job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend this action, if, in connection with the foregoing, the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees whose duties are substantially similar to those of their subordinates shall not be considered to be supervisory employees.
CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Assembly Bill No. 1788Introduced by Assembly Members Cunningham and Valladares(Coauthor: Assembly Member Lackey)February 03, 2022 An act to add Section 52.65 to the Civil Code, relating to sex trafficking. LEGISLATIVE COUNSEL'S DIGESTAB 1788, as introduced, Cunningham. Sex trafficking: hotels: constructive knowledge: civil penalty.Existing law requires hotels, as defined, to provide at least 20 minutes of training to their staff on how to recognize human trafficking as it pertains specifically to the hotel sector. Existing law does not create liability against a hotel or its employees for the lack of reporting a human trafficking case.This bill would allow civil penalties to be imposed against a hotel, as defined, if a supervisory employee, as defined, of the hotel knew or should have known of sex trafficking activities, as defined, that occurred within the hotel and failed to report to law enforcement, as specified, or if any employee of that hotel knowingly benefited from participating in a venture that the employee knew or should have known consisted of sex trafficking activity.This bill would authorize a city, county, or city and county attorney to seek equitable relief, or to seek a civil penalty of $1,000 for the first occurrence, $3,000 for a 2nd occurrence within the same calendar year, and $5,000 for a 3rd and any subsequent occurrence of sex trafficking within the same calendar year. Against particularly egregious offenders, this bill would authorize a court to consider specified factors and exercise its discretion to increase the amount of the civil penalty, not to exceed $10,000, for any 4th or subsequent occurrence.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO
CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION
Assembly Bill
No. 1788
Introduced by Assembly Members Cunningham and Valladares(Coauthor: Assembly Member Lackey)February 03, 2022
Introduced by Assembly Members Cunningham and Valladares(Coauthor: Assembly Member Lackey)
February 03, 2022
An act to add Section 52.65 to the Civil Code, relating to sex trafficking.
LEGISLATIVE COUNSEL'S DIGEST
## LEGISLATIVE COUNSEL'S DIGEST
AB 1788, as introduced, Cunningham. Sex trafficking: hotels: constructive knowledge: civil penalty.
Existing law requires hotels, as defined, to provide at least 20 minutes of training to their staff on how to recognize human trafficking as it pertains specifically to the hotel sector. Existing law does not create liability against a hotel or its employees for the lack of reporting a human trafficking case.This bill would allow civil penalties to be imposed against a hotel, as defined, if a supervisory employee, as defined, of the hotel knew or should have known of sex trafficking activities, as defined, that occurred within the hotel and failed to report to law enforcement, as specified, or if any employee of that hotel knowingly benefited from participating in a venture that the employee knew or should have known consisted of sex trafficking activity.This bill would authorize a city, county, or city and county attorney to seek equitable relief, or to seek a civil penalty of $1,000 for the first occurrence, $3,000 for a 2nd occurrence within the same calendar year, and $5,000 for a 3rd and any subsequent occurrence of sex trafficking within the same calendar year. Against particularly egregious offenders, this bill would authorize a court to consider specified factors and exercise its discretion to increase the amount of the civil penalty, not to exceed $10,000, for any 4th or subsequent occurrence.
Existing law requires hotels, as defined, to provide at least 20 minutes of training to their staff on how to recognize human trafficking as it pertains specifically to the hotel sector. Existing law does not create liability against a hotel or its employees for the lack of reporting a human trafficking case.
This bill would allow civil penalties to be imposed against a hotel, as defined, if a supervisory employee, as defined, of the hotel knew or should have known of sex trafficking activities, as defined, that occurred within the hotel and failed to report to law enforcement, as specified, or if any employee of that hotel knowingly benefited from participating in a venture that the employee knew or should have known consisted of sex trafficking activity.
This bill would authorize a city, county, or city and county attorney to seek equitable relief, or to seek a civil penalty of $1,000 for the first occurrence, $3,000 for a 2nd occurrence within the same calendar year, and $5,000 for a 3rd and any subsequent occurrence of sex trafficking within the same calendar year. Against particularly egregious offenders, this bill would authorize a court to consider specified factors and exercise its discretion to increase the amount of the civil penalty, not to exceed $10,000, for any 4th or subsequent occurrence.
## Digest Key
## Bill Text
The people of the State of California do enact as follows:SECTION 1. Section 52.65 is added to the Civil Code, immediately following Section 52.6, to read:52.65. (a) A hotel, as defined in subdivision (a) of Section 1861.1, is in violation of this section, and subject to civil penalties, if either or both of the following conditions are met:(1) Sex trafficking activity occurred in the hotel, a supervisory employee of the hotel knew or should have known of the activity and of the nature of the activity, and the supervisory employee of the hotel, who knew or should have known of the activity, failed to file an official report of the sex trafficking activity with law enforcement within 24 hours.(2) An employee of the hotel knowingly benefited, financially or by receiving anything of value, by participating in a venture that the employee knew or should have known consisted of sex trafficking.(b) If there is reasonable cause to believe there has been a violation pursuant to subdivision (a), a city, county, or city and county attorney may bring a civil action for injunctive and other equitable relief. A city, county, or city and county attorney that brings a civil action under this section may also seek civil penalties in the amount of one thousand dollars ($1,000) for the first occurrence in a calendar year, three thousand dollars ($3,000) for the second occurrence within the same calendar year, and five thousand dollars ($5,000) for the third and any subsequent occurrence within the same calendar year.(c) If, after a hearing in open court, the court determines the respondent to be an egregious offender, the court may exercise its discretion to increase the amount of the civil penalty, not to exceed ten thousand dollars ($10,000), for any fourth or subsequent occurrence, considering all of the following factors:(1) The respondents culpability.(2) The relationship between the harm and the penalty.(3) The penalties imposed for similar conduct in similar statutes.(4) The respondents ability to pay.(d) The lack of reporting of a sex trafficking case that occurs in a hotel shall not, by itself, result in the liability of an employer or employee of that establishment to the sex trafficking victim or victims in the case in question or to any other party.(e) No liability for civil penalties shall arise under this section against a hotel employee.(f) Violation of this section, by itself, shall not result in criminal liability against the hotel.(g) The primary purpose of this section is to provide additional tools to encourage or compel hotels to take appropriate action necessary to prevent sex trafficking activity from occurring within their establishments. Nothing in this section is intended to affect criminal or civil liability that may arise pursuant to other provisions of law.(h) For the purposes of this section, the following terms shall have the following definitions:(1) Sex trafficking means human trafficking for the purposes of engaging in a commercial sex act as set forth in subdivision (c) of Section 236.1 of the Penal Code.(2) Supervisory employee means any individual, regardless of the job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend this action, if, in connection with the foregoing, the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees whose duties are substantially similar to those of their subordinates shall not be considered to be supervisory employees.
The people of the State of California do enact as follows:
## The people of the State of California do enact as follows:
SECTION 1. Section 52.65 is added to the Civil Code, immediately following Section 52.6, to read:52.65. (a) A hotel, as defined in subdivision (a) of Section 1861.1, is in violation of this section, and subject to civil penalties, if either or both of the following conditions are met:(1) Sex trafficking activity occurred in the hotel, a supervisory employee of the hotel knew or should have known of the activity and of the nature of the activity, and the supervisory employee of the hotel, who knew or should have known of the activity, failed to file an official report of the sex trafficking activity with law enforcement within 24 hours.(2) An employee of the hotel knowingly benefited, financially or by receiving anything of value, by participating in a venture that the employee knew or should have known consisted of sex trafficking.(b) If there is reasonable cause to believe there has been a violation pursuant to subdivision (a), a city, county, or city and county attorney may bring a civil action for injunctive and other equitable relief. A city, county, or city and county attorney that brings a civil action under this section may also seek civil penalties in the amount of one thousand dollars ($1,000) for the first occurrence in a calendar year, three thousand dollars ($3,000) for the second occurrence within the same calendar year, and five thousand dollars ($5,000) for the third and any subsequent occurrence within the same calendar year.(c) If, after a hearing in open court, the court determines the respondent to be an egregious offender, the court may exercise its discretion to increase the amount of the civil penalty, not to exceed ten thousand dollars ($10,000), for any fourth or subsequent occurrence, considering all of the following factors:(1) The respondents culpability.(2) The relationship between the harm and the penalty.(3) The penalties imposed for similar conduct in similar statutes.(4) The respondents ability to pay.(d) The lack of reporting of a sex trafficking case that occurs in a hotel shall not, by itself, result in the liability of an employer or employee of that establishment to the sex trafficking victim or victims in the case in question or to any other party.(e) No liability for civil penalties shall arise under this section against a hotel employee.(f) Violation of this section, by itself, shall not result in criminal liability against the hotel.(g) The primary purpose of this section is to provide additional tools to encourage or compel hotels to take appropriate action necessary to prevent sex trafficking activity from occurring within their establishments. Nothing in this section is intended to affect criminal or civil liability that may arise pursuant to other provisions of law.(h) For the purposes of this section, the following terms shall have the following definitions:(1) Sex trafficking means human trafficking for the purposes of engaging in a commercial sex act as set forth in subdivision (c) of Section 236.1 of the Penal Code.(2) Supervisory employee means any individual, regardless of the job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend this action, if, in connection with the foregoing, the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees whose duties are substantially similar to those of their subordinates shall not be considered to be supervisory employees.
SECTION 1. Section 52.65 is added to the Civil Code, immediately following Section 52.6, to read:
### SECTION 1.
52.65. (a) A hotel, as defined in subdivision (a) of Section 1861.1, is in violation of this section, and subject to civil penalties, if either or both of the following conditions are met:(1) Sex trafficking activity occurred in the hotel, a supervisory employee of the hotel knew or should have known of the activity and of the nature of the activity, and the supervisory employee of the hotel, who knew or should have known of the activity, failed to file an official report of the sex trafficking activity with law enforcement within 24 hours.(2) An employee of the hotel knowingly benefited, financially or by receiving anything of value, by participating in a venture that the employee knew or should have known consisted of sex trafficking.(b) If there is reasonable cause to believe there has been a violation pursuant to subdivision (a), a city, county, or city and county attorney may bring a civil action for injunctive and other equitable relief. A city, county, or city and county attorney that brings a civil action under this section may also seek civil penalties in the amount of one thousand dollars ($1,000) for the first occurrence in a calendar year, three thousand dollars ($3,000) for the second occurrence within the same calendar year, and five thousand dollars ($5,000) for the third and any subsequent occurrence within the same calendar year.(c) If, after a hearing in open court, the court determines the respondent to be an egregious offender, the court may exercise its discretion to increase the amount of the civil penalty, not to exceed ten thousand dollars ($10,000), for any fourth or subsequent occurrence, considering all of the following factors:(1) The respondents culpability.(2) The relationship between the harm and the penalty.(3) The penalties imposed for similar conduct in similar statutes.(4) The respondents ability to pay.(d) The lack of reporting of a sex trafficking case that occurs in a hotel shall not, by itself, result in the liability of an employer or employee of that establishment to the sex trafficking victim or victims in the case in question or to any other party.(e) No liability for civil penalties shall arise under this section against a hotel employee.(f) Violation of this section, by itself, shall not result in criminal liability against the hotel.(g) The primary purpose of this section is to provide additional tools to encourage or compel hotels to take appropriate action necessary to prevent sex trafficking activity from occurring within their establishments. Nothing in this section is intended to affect criminal or civil liability that may arise pursuant to other provisions of law.(h) For the purposes of this section, the following terms shall have the following definitions:(1) Sex trafficking means human trafficking for the purposes of engaging in a commercial sex act as set forth in subdivision (c) of Section 236.1 of the Penal Code.(2) Supervisory employee means any individual, regardless of the job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend this action, if, in connection with the foregoing, the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees whose duties are substantially similar to those of their subordinates shall not be considered to be supervisory employees.
52.65. (a) A hotel, as defined in subdivision (a) of Section 1861.1, is in violation of this section, and subject to civil penalties, if either or both of the following conditions are met:(1) Sex trafficking activity occurred in the hotel, a supervisory employee of the hotel knew or should have known of the activity and of the nature of the activity, and the supervisory employee of the hotel, who knew or should have known of the activity, failed to file an official report of the sex trafficking activity with law enforcement within 24 hours.(2) An employee of the hotel knowingly benefited, financially or by receiving anything of value, by participating in a venture that the employee knew or should have known consisted of sex trafficking.(b) If there is reasonable cause to believe there has been a violation pursuant to subdivision (a), a city, county, or city and county attorney may bring a civil action for injunctive and other equitable relief. A city, county, or city and county attorney that brings a civil action under this section may also seek civil penalties in the amount of one thousand dollars ($1,000) for the first occurrence in a calendar year, three thousand dollars ($3,000) for the second occurrence within the same calendar year, and five thousand dollars ($5,000) for the third and any subsequent occurrence within the same calendar year.(c) If, after a hearing in open court, the court determines the respondent to be an egregious offender, the court may exercise its discretion to increase the amount of the civil penalty, not to exceed ten thousand dollars ($10,000), for any fourth or subsequent occurrence, considering all of the following factors:(1) The respondents culpability.(2) The relationship between the harm and the penalty.(3) The penalties imposed for similar conduct in similar statutes.(4) The respondents ability to pay.(d) The lack of reporting of a sex trafficking case that occurs in a hotel shall not, by itself, result in the liability of an employer or employee of that establishment to the sex trafficking victim or victims in the case in question or to any other party.(e) No liability for civil penalties shall arise under this section against a hotel employee.(f) Violation of this section, by itself, shall not result in criminal liability against the hotel.(g) The primary purpose of this section is to provide additional tools to encourage or compel hotels to take appropriate action necessary to prevent sex trafficking activity from occurring within their establishments. Nothing in this section is intended to affect criminal or civil liability that may arise pursuant to other provisions of law.(h) For the purposes of this section, the following terms shall have the following definitions:(1) Sex trafficking means human trafficking for the purposes of engaging in a commercial sex act as set forth in subdivision (c) of Section 236.1 of the Penal Code.(2) Supervisory employee means any individual, regardless of the job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend this action, if, in connection with the foregoing, the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees whose duties are substantially similar to those of their subordinates shall not be considered to be supervisory employees.
52.65. (a) A hotel, as defined in subdivision (a) of Section 1861.1, is in violation of this section, and subject to civil penalties, if either or both of the following conditions are met:(1) Sex trafficking activity occurred in the hotel, a supervisory employee of the hotel knew or should have known of the activity and of the nature of the activity, and the supervisory employee of the hotel, who knew or should have known of the activity, failed to file an official report of the sex trafficking activity with law enforcement within 24 hours.(2) An employee of the hotel knowingly benefited, financially or by receiving anything of value, by participating in a venture that the employee knew or should have known consisted of sex trafficking.(b) If there is reasonable cause to believe there has been a violation pursuant to subdivision (a), a city, county, or city and county attorney may bring a civil action for injunctive and other equitable relief. A city, county, or city and county attorney that brings a civil action under this section may also seek civil penalties in the amount of one thousand dollars ($1,000) for the first occurrence in a calendar year, three thousand dollars ($3,000) for the second occurrence within the same calendar year, and five thousand dollars ($5,000) for the third and any subsequent occurrence within the same calendar year.(c) If, after a hearing in open court, the court determines the respondent to be an egregious offender, the court may exercise its discretion to increase the amount of the civil penalty, not to exceed ten thousand dollars ($10,000), for any fourth or subsequent occurrence, considering all of the following factors:(1) The respondents culpability.(2) The relationship between the harm and the penalty.(3) The penalties imposed for similar conduct in similar statutes.(4) The respondents ability to pay.(d) The lack of reporting of a sex trafficking case that occurs in a hotel shall not, by itself, result in the liability of an employer or employee of that establishment to the sex trafficking victim or victims in the case in question or to any other party.(e) No liability for civil penalties shall arise under this section against a hotel employee.(f) Violation of this section, by itself, shall not result in criminal liability against the hotel.(g) The primary purpose of this section is to provide additional tools to encourage or compel hotels to take appropriate action necessary to prevent sex trafficking activity from occurring within their establishments. Nothing in this section is intended to affect criminal or civil liability that may arise pursuant to other provisions of law.(h) For the purposes of this section, the following terms shall have the following definitions:(1) Sex trafficking means human trafficking for the purposes of engaging in a commercial sex act as set forth in subdivision (c) of Section 236.1 of the Penal Code.(2) Supervisory employee means any individual, regardless of the job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend this action, if, in connection with the foregoing, the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees whose duties are substantially similar to those of their subordinates shall not be considered to be supervisory employees.
52.65. (a) A hotel, as defined in subdivision (a) of Section 1861.1, is in violation of this section, and subject to civil penalties, if either or both of the following conditions are met:
(1) Sex trafficking activity occurred in the hotel, a supervisory employee of the hotel knew or should have known of the activity and of the nature of the activity, and the supervisory employee of the hotel, who knew or should have known of the activity, failed to file an official report of the sex trafficking activity with law enforcement within 24 hours.
(2) An employee of the hotel knowingly benefited, financially or by receiving anything of value, by participating in a venture that the employee knew or should have known consisted of sex trafficking.
(b) If there is reasonable cause to believe there has been a violation pursuant to subdivision (a), a city, county, or city and county attorney may bring a civil action for injunctive and other equitable relief. A city, county, or city and county attorney that brings a civil action under this section may also seek civil penalties in the amount of one thousand dollars ($1,000) for the first occurrence in a calendar year, three thousand dollars ($3,000) for the second occurrence within the same calendar year, and five thousand dollars ($5,000) for the third and any subsequent occurrence within the same calendar year.
(c) If, after a hearing in open court, the court determines the respondent to be an egregious offender, the court may exercise its discretion to increase the amount of the civil penalty, not to exceed ten thousand dollars ($10,000), for any fourth or subsequent occurrence, considering all of the following factors:
(1) The respondents culpability.
(2) The relationship between the harm and the penalty.
(3) The penalties imposed for similar conduct in similar statutes.
(4) The respondents ability to pay.
(d) The lack of reporting of a sex trafficking case that occurs in a hotel shall not, by itself, result in the liability of an employer or employee of that establishment to the sex trafficking victim or victims in the case in question or to any other party.
(e) No liability for civil penalties shall arise under this section against a hotel employee.
(f) Violation of this section, by itself, shall not result in criminal liability against the hotel.
(g) The primary purpose of this section is to provide additional tools to encourage or compel hotels to take appropriate action necessary to prevent sex trafficking activity from occurring within their establishments. Nothing in this section is intended to affect criminal or civil liability that may arise pursuant to other provisions of law.
(h) For the purposes of this section, the following terms shall have the following definitions:
(1) Sex trafficking means human trafficking for the purposes of engaging in a commercial sex act as set forth in subdivision (c) of Section 236.1 of the Penal Code.
(2) Supervisory employee means any individual, regardless of the job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend this action, if, in connection with the foregoing, the exercise of this authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees whose duties are substantially similar to those of their subordinates shall not be considered to be supervisory employees.