BILL ANALYSIS                                                                                                                                                                                                    ”






                                                                     AB 676


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          Date of Hearing:  April 8, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, Chair


          AB 676  
          (Calderon) - As Introduced February 25, 2015


          SUBJECT:  Employment:  discrimination:  status as unemployed


          SUMMARY:  Enacts various provisions of law related to  
          discrimination based on an individual's employment status  
          (present unemployment).    Specifically, this bill:  


          1)Defines "employment status" to mean an individual's present  
            unemployment, regardless of length of time that the individual  
            has been unemployed.

          2)Prohibits an employer, unless based on a bona fide  
            occupational qualification, from doing either of the  
            following:

             a)   Publishing an advertisement or announcement for any job  
               that includes a provision stating or indicating that an  
               individual's current employment is a requirement for the  
               job.

             b)   Affirmatively asking an applicant for employment to  
               disclose information concerning the applicant's current  
               employment status  until  the employer has determined that  
               the applicant meets the minimum employment qualifications  
               for the position.











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          3)Prohibits an employment agency, unless based on a bona fide  
            occupational qualification, from doing any of the following:

             a)   Publishing an advertisement or announcement for any job  
               that includes a provision stating or indicating that an  
               individual's current employment is a requirement for the  
               job.

             b)   Limiting, segregating, or classifying an individual in  
               any manner that may limit that individual's access to  
               information about jobs or referrals for consideration of  
               jobs because of the individual's employment status.

             c)   Affirmatively asking an applicant for employment to  
               disclose information concerning the applicant's current  
               employment status  until the employer has determined that  
               the applicant meets the minimum employment qualifications  
               for the position.

          4)Prohibits a person who operates a job posting website, unless  
            based on a bona fide occupational qualification, from  
            publishing an advertisement or announcement for any job that  
            includes a provision stating or indicating that an  
            individual's current employment is a requirement for the job.

          5)Provides that this bill does not prohibit an employer,  
            employment agency, or person operating a job posting website  
            from doing the following:



             a)   Publishing an advertisement or announcement for any job  
               that contains any provision setting forth qualifications  
               for a job, as specified, including that only individuals  
               who are current employees of the employer will be  
               considered for the job.

             b)   Setting forth qualifications for any job, as specified.











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             c)   Obtaining information regarding an individual's  
               employment, including recent relevant experience.

             d)   Having knowledge of a person's employment status.

             e)   Inquiring as to the reasons for an individual's  
               employment status.

             f)   Refusing to offer employment to a person because of the  
               reasons underlying an individual's employment status.

             g)   Otherwise making employment decisions pertaining to that  
               individual.

          6)Prohibits an employer, employment agency, or person operating  
            a job posting website from interfering with, restraining, or  
            denying the exercise of, or the attempt to exercise, any  
            rights provided under this bill, or discriminating against an  
            individual because the individual has engaged in specified  
            activities.

          7)Authorizes an individual aggrieved by a violation of this bill  
            to file a complaint with the Labor Commissioner.

          8)Establishes civil penalties of $1,000 for a first violation,  
            $5,000 for a second violation, and $10,000 for each subsequent  
            violation.


          FISCAL EFFECT:  Unknown


          COMMENTS:  Over the last several years, significant media  
          attention has focused on reports that some employers are  
          refusing to consider applicants for employment unless those  
          individuals are currently employed in other jobs (thereby  
          excluding from consideration those applicants who are currently  
          unemployed).  Many advocates and policymakers have referred to  











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          this phenomenon as "discrimination against the unemployed."  


          "Unemployed Need Not Apply"


          In the summer of 2010, news accounts began to emerge suggesting  
          that some employers were establishing a blanket exclusion of  
          unemployed workers from job consideration.  One of the first  
          stories involved a report by media in Atlanta that Sony  
          Ericsson's newly relocated headquarters had posted a job  
          announcement that explicitly stated, "No Unemployed Candidates  
          Considered At All."


          Subsequently, in early 2011 the National Employment Law Project  
          (NELP) conducted a four-week review of the nation's most  
          prominent online job listing websites.  The online research  
          sought information on both employers and staffing firms that  
          were specifically identified by name from across the United  
          States.  


          NELP's research of job postings identified more than 150 ads  
          that included exclusions based on current employment status<1>.   
          Most of the ads specifically stated that applicants "must be  
          currently employed."


          In June 2011, a national survey conducted by Hart Research  
          Associates indicated that 80 percent of respondents described  
          the refusal to consider unemployed job applicants as "very  
          unfair."  Nearly two-thirds of respondents said they favored  
          federal legislation to make "it illegal for companies to refuse  
          to hire or consider a qualified job applicant solely because the  




          ---------------------------



          ---------------------------
          <1> "Briefing Paper: Hiring Discrimination Against the  
          Unemployed."  National Employment Law Project (July 12, 2011).










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          person is currently unemployed<2>."


          Do Such Policies Exacerbate The Unemployment Crisis? 


          Advocates have argued that employer policies that preclude  
          consideration of the unemployed in hiring are not only  
          fundamentally unfair, they also reflect insensitivity to today's  
          severe jobs deficit:


               "By any measure, the nation is suffering from a severe  
               unemployment crisis, cutting across nearly all sectors of  
               the economy. High unemployment has persisted for three  
               years, with the national unemployment rate hovering around  
               9 percent for more than two years and edging up to 9.2  
               percent in June 2011. Millions have been out of work for  
               significantly longer than in any other recession on record:  
               nearly 6.3 million unemployed workers have been out of work  
               for six months or longer, and the average spell of  
               unemployment has risen, reaching nearly 40 weeks, or more  
               than nine months, as of June 2011.


               Our ongoing unemployment crisis is not the result of  
               unwillingness to work on the part of the unemployed, or a  
               mismatch between available jobs and skills of job seekers.  
               At the core of the crisis is the fact that there simply are  
               not enough jobs. Our current jobs deficit exceeds 11  
               million jobs, taking into account the net number of jobs  
               lost since December 2007 and the additional new jobs that  
               were needed simply to keep up with population growth. As  
               one small measure of the intense competition for jobs  
               resulting from this deficit, the ratio of unemployed  
               workers (that is, individuals who are without jobs and are  
               actively looking for work) to the number of new job  



               -------------------------


          <2> Id. at 3.








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               openings (net) is alarmingly high. The most recent figures  
               available show that during the month of May 2011, there  
               were more than nearly five unemployed workers for every one  
               job opening-the exact ratio stood at 4.7-to-13. May 2011  
               marked the 29th consecutive month during which there was  
               only one opening for at least every four unemployed  
               workers.


               By comparison, at the start of the Great Recession in  
               December 2007, there were less than two unemployed workers  
               for every opening. Even during the prior 2001 recession and  
               its aftermath, the ratio of unemployed to job openings  
               peaked at 2.8-to-1-a level surpassed less than a year into  
               the current downturn.





               Competition for jobs is stiff in every part of the country,  
               with unemployed workers outnumbering available job openings  
               by nearly four-to-one or more in every region. In the West,  
               the demand for scarce jobs is even greater, with five or  
               more unemployed workers for every opening as of May; the  
               South is not far behind. The ratio of unemployed workers to  
               job openings has roughly doubled in every region and at the  
               national level since the start of the Great Recession, and  
               in the South and West, it has roughly tripled.


               Taken together, the lack of available job openings and the  
               denial of employment opportunities that do exist create  
               stark obstacles for more than 14 million unemployed who  
               simply want to get back to work<3>."


          Recent White House Report on the Long-Term Unemployment Crisis



          ---------------------------


          <3> Id. at 4.








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          In January 2014, the White House released a report<4> which  
          explored the challenge of long-term unemployment, something it  
          called "the worst legacy of the Great Recession."


          Among other things, the report found that, although the long-  
          and short-term unemployed have similar credentials overall,  
          research suggests that the long-term unemployed face significant  
          disadvantages in the labor market simply by virtue of their  
          status as being long-term unemployed.


          Specifically, the report made the following findings:


                 The long-term unemployed are about half as likely as the  
               short-term unemployed to get a callback. Interview  
               "callback" rate for otherwise identical resumes falls  
               sharply as the length of unemployment rises, with callbacks  
               45 percent lower for those unemployed for eight months  
               compared to those unemployed for just one month.
                 To land an interview, the long-term unemployed must  
               apply to 3.5 times as many jobs as the short-term  
               unemployed. Applicants unemployed for seven months need to  
               send an average of 35 resumes to online job postings to  
               receive just one interview, compared to just 10 resumes per  
               interview for those unemployed for only one month.
                 Employers may be screening out applicants based on  
               duration of unemployment, and missing the more qualified  
               applicants. Long-term unemployed workers with relevant work  
               experience are less likely to be invited for an interview  
               than recently unemployed job applicants with no relevant  
               experience.

          Therefore, the Administration announced the following  


          ---------------------------


          <4> "Addressing the Negative Cycle of Long-Term Unemployment."   
          Executive Office of the President (January 2014).








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          initiatives:


                 "New Best Practices for Hiring and Recruiting the  
               Long-Term Unemployed. As part of an ongoing effort that  
               began several months ago, the Administration has engaged  
               with America's leading businesses to develop best practices  
               for hiring and recruiting the long-term unemployed to  
               ensure that these candidates receive a fair shot during the  
               hiring process. Over 80 of the nation's largest businesses  
               have signed on, including 20 members of the Fortune 50 and  
               over 45 members of the Fortune 200, as well as over 200  
               small- and medium-sized businesses. 

                 Presidential Memorandum to Make Sure the Federal  
               Government Does the Same. The President will also lead by  
               example and use his executive authority to sign a  
               Presidential Memorandum to make sure that individuals who  
               are unemployed or have faced financial difficulties through  
               no fault of their own receive fair treatment and  
               consideration for employment by federal agencies."<5> 





          ARGUMENTS IN SUPPORT:


          According to the author, research shows that the long-term  
          unemployed are frequently overlooked and sometimes excluded from  
          job opportunities.  Employers and employment agencies have  
          posted job vacancy notifications with language such as "No  
          unemployed candidates considered at all" or "Only currently  
          employed candidates will be considered." 


          Employers are disinclined to hire even well-qualified job  



          ---------------------------


          <5> Id.








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          applicants who have been out of work for six months or longer.  
          Three Princeton economists found that only 11 percent of those  
          unemployed for more than 6 months will ever regain steady  
          full-time work.


          Therefore, the author states that this bill would seek to  
          prevent employers, including the state and local agencies, or  
          employment agencies from affirmatively asking an applicant for  
          employment to disclose information concerning employment status  
          until the employer or employment agency has determined that the  
          applicant meets the minimum employment qualifications for the  
          position. 


          The bill will prohibit an employer, employment agency, or person  
          who operates on Internet Web Site for posting jobs in this state  
          from publishing a job announcement or advertisement containing a  
          provision stating or indicating that an individual's current  
          employment is a requirement for the job, unless based on a bona  
          fide occupational qualification.


          PRIOR RELATED LEGISLATION:


          AB 2271 (Calderon) of 2014, nearly identical to this bill was  
          vetoed by the Governor on the grounds that it could impede the  
          state's efforts to connect unemployed workers to prospective  
          employers as it was then drafted.  Below is the Governor's veto  
          message to AB 2271.


            "This bill would prohibit an employer from discriminating  
            against job applicants based on the applicant's status as  
            unemployed. While I support the intent of this bill, it could  
            impede the state's efforts to connect unemployed workers to  
            prospective employers as currently drafted. The problems  
            facing our state's long term unemployed are great. There is no  











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            doubt that those Californians want to get back to work and I  
            want to help them get there - unfortunately this bill does not  
            provide the proper path to address this problem."


          This bill is similar, but not identical, to AB 1450 (Allen) from  
          2012.  As introduced, AB 1450 would have, among other things,  
          prohibited an employer with 15 or more employees from refusing  
          to consider an individual or offer employment because of the  
          individual's employment status.


          This bill differs from AB 1450 in that it merely prohibits an  
          employer from affirmatively asking an applicant for employment  
          to disclose information concerning the applicant's current  
          employment status  until  the employer has determined that the  
          applicant meets the minimum employment qualifications for the  
          position.  This approach is more consistent with recent efforts  
          on "ban the box" legislation related to employment applicants  
          with criminal histories.  For example, AB 218 (Dickinson)  
          enacted in 2013 prohibits a state or local agency from asking an  
          applicant for employment to disclose information concerning the  
          conviction history of the applicant, including any inquiry about  
          conviction history on any employment application, until the  
          agency has determined the applicant meets the minimum employment  
          qualifications, as stated in any notice issued for the position.


          AB 1450 was subsequently amended to delete provisions of the  
          bill related to hiring decisions and offers of employment and  
          instead merely prohibited job advertisements or announcements  
          that stated or indicated that an individual's current employment  
          is a requirement for a job.  AB 1450 was vetoed by Governor  
          Brown, who stated the following in his veto message:


               "This measure seeks to prevent discrimination against the  
               unemployed based on their job status by prohibiting  
               employers from stating in employment ads that applicants  











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               must be employed. Unfortunately, as this measure went  
               through the legislative process it was changed in a way  
               that could lead to unnecessary confusion."


          REGISTERED SUPPORT / OPPOSITION:




          Support


          CA Conference Board of the Amalgamated Transit Union


          CA Conference of Machinists


          California Employment Lawyers Association


          California Immigrant Policy Center


          California Labor Federation, AFL-CIO


          California Nurses Association


          California Rural Legal Assistance Foundation


          California Teamsters Public Affairs Council


          Engineers & Scientists of California












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          International Longshore & Warehouse Union


          National Association of Social Workers, CA Chapter


          Professional & Technical Engineers


          UNITE-HERE


          Utility Workers Union of America




          Opposition


          None on file.




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