BILL ANALYSIS                                                                                                                                                                                                    





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               AB 676       Hearing Date:    June 24,  
          2015
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          |Author:    |Calderon                                             |
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          |Version:   |February 25, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Alma Perez-Schwab                                    |
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            Subject:  Employment:  discrimination:  status as unemployed


          KEY ISSUE
          
          Should legislation be enacted making it unlawful for an employer  
          to discriminate against an unemployed individual who applies for  
          employment? 

          Should it be illegal for an employer, employment agency, or  
          person operating an Internet job posting website to advertise or  
          announce, in job postings, any provisions stating or indicating  
          that an individual's current employment is a requirement for the  
          job? 


          ANALYSIS
          
           Existing federal and state law  contains provisions that define  
          unlawful discrimination and lawful employment practices by  
          employers and employment agencies to protect both prospective  
          and current employees against employment discrimination. The  
          existing Fair Employment and Housing Act (FEHA) prohibits  
          harassment and discrimination in employment because of, among  
          other things, race, color, religion, sex, sexual orientation,  
          marital status, mental and physical disability, age and/or  








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          retaliation for protesting illegal discrimination related to one  
          of these categories or for reporting patient abuse in tax  
          supported institutions. (Government Code 12940, 12945, 12945.2)

           Existing law  prohibits employers from discriminating,  
          discharging or refusing to hire an employee based on an  
          employee's lawful conduct during nonworking hours away from the  
          employer's premises. (Labor Code 96 & 98.6) 
           

          This Bill  would enact various provisions of law related to  
          discrimination against an applicant for employment based on his  
          or her current employment status, as specified.  

          Specifically, this bill would:  

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

             2)   Prohibit 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 job requirement.

               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.

             3)   Prohibit 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 job requirement.

               b)     Limiting, segregating, or classifying an individual  
                 in any manner that may limit his/her access to  
                 information about jobs or referrals for consideration of  







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                 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)   Prohibit 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)   Provide 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, including:
                  i)        Holding professional or occupational license,  
                    certificate, permit or credential; 
                  ii)       Requiring a minimum level of education or  
                    training or experience;
                  iii)      Stating that only current employees of the  
                    employer will be considered.

               b)     Obtaining information regarding employment,  
                 including recent relevant experience.

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

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

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

               f)     Otherwise making employment decisions pertaining to  
                 that individual.

             6)   Prohibit an employer, employment agency, or person  
               operating a job posting website from interfering with,  







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               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)   Authorize an individual aggrieved by a violation of  
               these provisions to file a complaint with the Labor  
               Commissioner who may impose a civil penalty against the  
               employer of $1,000 for a first violation, $5,000 for a  
               second, and $10,000 for each subsequent violation. 


          COMMENTS
          
          1."  Unemployed Need Not Apply": Background on the Issue  
            
            The nation has suffered from a severe unemployment crisis that  
            has affected nearly all sectors of the economy. According to  
            the National Employment Law Project, around 9.8 million  
            workers were unemployed in May 2014, and 3.4 million, or 34.6  
            percent, of those workers were searching for work for six  
            months or more. In the summer of 2010, news accounts began to  
            emerge throughout the country suggesting that some employers  
            were establishing blanket exclusions of unemployed workers  
            from job consideration using terms like "must be currently  
            employed" or "require current (or very recent) tenure," as  
            part of the qualifications for employment. One of the first  
            stories reported, in May 2010, involved accounts by media in  
            Atlanta reporting that Sony Ericsson's newly relocated  
            headquarters had posted a job announcement for a marketing  
            position 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. NELP's research of  
            job postings identified more than 150 ads that included  
            exclusions based on current employment status. (Briefing  
            Paper: Hiring Discrimination against the Unemployed, National  
            Employment Law Project, July 12, 2011) Most of the ads  
            specifically stated that applicants "must be currently  
            employed." 

          2.  White House Report: Addressing the Negative Cycle of Long-Term  
            Unemployment  







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            In January 2014, the White House released a report,  
            "Addressing the Negative Cycle of Long-Term Unemployment,"  
            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.

             In response to these findings, the Administration announced  
          the following initiatives:

                 New Best Practices for Hiring and Recruiting Long-Term  
               Unemployed: Administration has engaged with America's  
               leading businesses to develop best practices for hiring and  
               recruiting the long-term unemployed and ensure they receive  
               a fair shot during hiring.  Over 80 of the nation's largest  
               businesses have signed on as well as many small- and  
               medium-sized businesses. 







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                 Presidential Memorandum to Make Sure the Federal  
               Government Does the Same: The 
               President will also lead by example 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.

                 Fund programs that help find employment:  The Department  
               of Labor is seeking to fund
               new programs that build on models that have shown success  
               in helping the long-term unemployed find employment through  
               innovative partnerships and proven strategies, including  
               job-training, subsidized employment, and sector-based  
               strategies.

          3. Need for this bill?

            Existing law authorizes employers to conduct an investigation,  
            such as a background check, into an individual's character for  
            employment purposes, as specified. Existing law also prohibits  
            harassment and discrimination in employment because of race,  
            color, religion, sex and sexual orientation, among others.   
            However, nothing specifically addresses the issue of  
            discriminating against the unemployed. 

            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 this phenomenon as "discrimination against the  
            unemployed" and have argued that it is not only improper  
            towards those who have suffered the misfortune of a layoff,  
            but also exacerbates the downturn by keeping qualified  
            applicants out of the job market.  According to the author, in  
            December 2014 the unemployment rate was recorded at 7.1 % and  
            in January 2015 the duration of unemployment lasting 27 weeks  
            or longer was recorded to have reached 2,800 individuals. This  
            bill attempts to ban such a practice under state law by  
            prohibiting employers from discriminating against prospective  
            job applicants on the basis of his/her employment status.  
          4.  Similar Efforts in Other States  :
            







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            Similar efforts have been attempted in other states. The State  
            of New Jersey became the first to enact a law effective in  
            2011. (New Jersey Statutes, Title 34, Chapter 8 B Sections  
            1-2-C.348B-1) The NJ statute prohibits an employer from  
            publishing a job posting that states any of the following: (1)  
            current employment is a job qualification; (2) currently  
            unemployed candidates will not be considered; or (3) only  
            currently employed job applicants will be considered.   
            According to the National Conference of State Legislatures, in  
            2012 both Oregon and the District of Columbia passed a law  
            prohibiting discrimination against the unemployed.  In 2013,  
            nine other states had introduced hiring discrimination bills.   


          5.  Proponent Arguments  :
            
            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." Proponents argue that  
            the long-term unemployed are some of California's most in-need  
            individuals whose harm is compounded when their attempts to  
            re-enter the work force are thwarted by this type of  
            discrimination. They cite a study which found that long-term  
            unemployed workers with otherwise identical resumes were  
            called back for interviews at rates 45% lower than the  
            short-term unemployed.  
            
            Proponents support the measure which seeks to prevent  
            employers 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. They believe that this bill will level the  
            playing field for the long-term unemployed and allow a  
            person's credentials and qualifications to speak first, rather  
            than their status as an unemployed individual.  

          6.  Opponent Arguments  :

            None received. 

          7.  Double Referral  :







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            This bill has been double referred to this Committee and the  
            Senate Judiciary Committee.  Should the bill be approved  
            today, it will be sent to Senate Judiciary for a hearing.

          8.  Prior and Related Legislation  :

            AB 2271 (Calderon) of 2014:  Vetoed by the Governor 
            AB 2271 was nearly identical to this bill and was vetoed by  
            the Governor. 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 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."


            AB 1450 (Allen) of 2012:  Vetoed by the Governor 
            This bill is similar, but not identical, to AB 1450 from 2012.  
             This bill differs in that it merely prohibits an employer  
            from asking an applicant to disclose information concerning  
            his/her current employment status  until  the employer has  
            determined that the applicant meets the minimum employment  
            qualifications for the position.  
            
            AB 218(Dickinson) of 2013:  Chaptered  
            AB 218 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 specified.


          SUPPORT
          
          CA Conference Board of the Amalgamated Transit Union
          CA Conference of Machinists
          California Employment Lawyers Association
          California Labor Federation, AFL-CIO







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          California Nurses Association
          California State Firefighters' Association 
          California Teamsters Public Affairs Council
          Engineers & Scientists of California
          Glendale City Employees Association 
          International Longshore & Warehouse Union
          National Association of Social Workers, CA Chapter
          Organization of SMUD Employees
          Professional & Technical Engineers
          San Bernardino Public Employees Association 
          San Diego County Court Employees Association 
          Service Employees International Union 
          San Luis Obispo County Employees Association 
          UNITE-HERE, AFL-CIO
          Utility Workers Union of America


          OPPOSITION
          
          None received


                                      -- END --