BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 676 (Calderon) - Employment: discrimination: status as  
          unemployed.
          
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          |Version: February 25, 2015      |Policy Vote: L. & I.R. 4 - 1,   |
          |                                |          JUD. 5 - 2            |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: August 17, 2015   |Consultant: Robert Ingenito     |
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          This bill meets the criteria for referral to the Suspense File.


          

          Bill Summary: AB 676 would prohibit an employer from  
          discriminating against prospective job applicants on the basis  
          of employment status.  This bill would provide that an employer,  
          employment agency, or person operating an Internet job posting  
          Web site who discriminates against unemployed job applicants  
          would be subject to a civil penalty, enforceable by the Labor  
          Commissioner.

          Fiscal Impact: The Department of Industrial Relations (DIR)  
          would incur increased administrative costs in the range of $1  
          million to $3 million annually (special funds) as a result of  
          the bill, to process, review, and investigate complaints.

          Background: Existing law authorizes employers to conduct an  
          investigation, such as a background check, into a person's  
          character for employment purposes.  Existing law also prohibits  







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          harassment and discrimination in employment because of race,  
          color, religion, sex, and sexual orientation, among others.   
          Existing law does not address discrimination based on a person's  
          employment status.

          Proposed Law: This bill would do all of the following:

                 Prohibit an employer or an employment agency from  
               affirmatively asking an applicant 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.

                 Prohibit an employment agency, unless based on a bona  
               fide occupational qualification, from 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.

                 Prohibit 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.

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

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

                 Specify this bill does not create or authorize a private  
               right of action. 

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


          Related Legislation: 
                 This bill is nearly identical to AB 2271 (Calderon) of  








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               2014, which was vetoed by the Governor. The veto message  
               indicated the following: "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."

                 Additionally, this bill is similar, but not identical,  
               to AB 1450 (Allen) from 2012, which was also vetoed by the  
               Governor.  AB 1450 would have, among other things,  
               prohibited an employer from publishing an advertisement or  
               announcement that indicated that an individual's current  
               employment is a requirement for a job. This bill differs  
               from AB 1450 in that it simply 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.  
          

          Staff Comments: Any employee or applicant for employment who  
          believes he or she was discharged or denied employment or  
          otherwise retaliated or discriminated against in violation of  
          any law under the jurisdiction of DIR may file a complaint under  
          Labor Codes 98.6 and 98.7. Investigating whether an alleged  
          violator's action was made under a bona fide occupational  
          qualification is workload intensive.

          After a complaint is filed, the complaint will be reviewed to  
          confirm that DIR has jurisdiction over the specific complaint.   
          If it is found that the complaint comes under the jurisdiction  
          of the department, it is assigned to a retaliation complaint  
          investigator who will contact the employer and any witnesses  
          with information regarding the alleged discrimination or  
          retaliation.  If appropriate, the investigator may request the  
          parties meet to explore the possibility of settlement.   
          Investigators have the authority to issue subpoenas to obtain  
          evidence related to the case.  Once the investigation is  
          complete, if no settlement is reached, the investigator will  








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          prepare a written summary of findings.

          The Labor Commissioner will review the summary of findings and  
          make a determination.  If the Commissioner finds the employer  
          violated the law by retaliating or discriminating against the  
          employee or job applicant, the employer will be given ten days  
          to file an appeal or to comply with the determination to remedy  
          the retaliation or discrimination.  If the employer fails to  
          comply, an attorney for the Labor Commissioner will file a court  
          action to enforce the determination.  On occasion, the Labor  
          Commissioner may hold a hearing to fully establish the facts of  
          the complaint.

          This bill would specifically create new retaliation protections  
          for large categories of individuals, specifically the  
          unemployed.  This cohort currently totals roughly 1.5 million  
          people. As noted above, the bill would create retaliation  
          protection for non-employees (job applicants) and employees who  
          may be discriminated against simply because of their status as  
          unemployed. The number of individuals who would actually avail  
          themselves of these protections is unknown.  This is furthered  
          by the fact that DIR would now have enforcement authority for a  
          new group besides employers - 3rd party internet website  
          providers, whose number of related cases potentially generated  
          is also unknown. Taking all of this into account, DIR estimates  
          it may need roughly $1 to $3 million to cover staff costs to  
          handle the potential influx of claims.  These numbers estimate  
          that even if only .001 percent of potential claimants file  
          claims, DIR could require over two dozen staff to process the  
          retaliation cases.


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