BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 676 (Calderon) - Employment: discrimination: status as unemployed. ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: February 25, 2015 |Policy Vote: L. & I.R. 4 - 1, | | | JUD. 5 - 2 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 17, 2015 |Consultant: Robert Ingenito | | | | ----------------------------------------------------------------- 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 AB 676 (Calderon) Page 1 of ? 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 AB 676 (Calderon) Page 2 of ? 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 AB 676 (Calderon) Page 3 of ? 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. -- END --