BILL ANALYSIS Ó
AB 1687
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Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Kansen Chu, Chair
AB 1687
(Calderon) - As Introduced January 20, 2016
SUBJECT: Customer records: age information: commercial online
entertainment employment service providers.
SUMMARY: Prohibits a commercial online entertainment employment
service provider, as defined, that enters into an agreement to
provide certain employment services from publishing or sharing
information about the subscriber's age as specified, and would
require the provider to remove any information regarding the
subscriber's age from any Internet website under the provider's
control if requested by the subscriber.
Specifically, this bill:
1)Declares that the purpose of this section is to ensure that
information obtained on an Internet website regarding a
person's age will not be used in furtherance of employment or
age discrimination.
2)Provides that a commercial online entertainment employment
service provider that enters into a contractual agreement to
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provide employment services to an individual for a
subscription payment shall not, upon request by the
subscriber, do either of the following:
a) Publish or make public the subscriber's date of birth or
age information.
b) Share the subscriber's date of birth or age information
with any Internet websites for the purpose of publication.
3)Further provides that a commercial online entertainment
employment service provider subject to item 2 above shall
remove the subscriber's date of birth and age information from
public view on all Internet websites under its control upon
specific request by the subscriber naming the Internet
websites.
4)States that for purposes of this section, the following
definitions apply:
a) "Commercial online entertainment employment service
provider" means a person or business that owns, licenses,
or otherwise possesses computerized data that includes
personal information of people employed in the
entertainment industry, including television, films, and
video games, and that makes the personal information
available to the public or potential employers.
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b) "Payment" means a fee in exchange for advertisements, or
any other form of compensation or benefit.
c) "Provide employment services" means post resumes,
photographs, or other information about a job applicant
when one of the purposes is to provide individually
identifiable information to a prospective employer.
5)Makes related findings and declarations.
EXISTING LAW:
1)Prohibits employment discrimination based on race or color;
religion; national origin or ancestry, physical disability;
mental disability or medical condition; marital status; sex or
sexual orientation; age, with respect to persons over the age
of 40; and pregnancy, childbirth, or related medical
conditions.
Applies the above stated prohibitions to employment
discrimination covering employers, labor organizations,
employment agencies, apprenticeship programs and any person or
entity who aids, abets, incites, compels, or coerces the doing
of a discriminatory act. (Government 12900 et seq.)
2)States that all persons within the jurisdiction of this state
are free and equal and no matter what their sex, race, color,
religion, ancestry, national origin, disability, or medical
condition and are entitled to the full and equal
accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever. [Civil Code Section 51(b).]
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FISCAL EFFECT: Unknown.
COMMENTS:
1)Author & sponsor's statement of need for legislation: Existing
laws against age discrimination need shoring up in the online
employment environment. According to the author, "Age
discrimination in employment is against both federal and state
law. In California the relevant statutes are the California
Fair Employment and Housing Act (FEHA) and the Unruh Civil
Rights Act. Sadly, despite these laws age discrimination
continues to exist and is facilitated through public
distribution of potential job applicant's birth and age
information via commercial online employment service
providers."
The Screen Actors Guild/American Federation of Television and
Radio Artists (SAG-AFTRA) are the sponsors of this legislation
and have written the committee to say, "Under California's
FEHA, an employer is generally prohibited from asking the age
of a job applicant until a bone fide offer of employment is
made. However, since the advent of the internet and social
media, employment referral websites designed for the use of
casting professionals and others have provided access online
to birthdate information which would be illegal for employers
to seek in hard copy. Once having this information, they may
discriminate against the job seeker on the basis of age
without it being traced."
Additionally, the author point out that clarification of the
law is needed due to the "complicating factor in the fight
against age discrimination in Hollywood which is the notion
that artistic freedom provides a haven from antidiscrimination
laws. Indeed the law recognizes a defense against charges of
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discrimination for a bona fide occupational qualification
(BFOQ) which would allow for a man to be cast in the role of a
husband, or a child to be cast in the role of a school girl."
However, the author contends that, "anyone who has ever seen
Glee or 21 Jump Street knows we are not looking at high school
aged actors, and famously Olivia Newton-John was 29 when she
starred as high school cheerleader Sandy in the movie Grease.
Therefore, the true question posed under the age
discrimination BFOQ is what age can an actor play - not what
year are they born."
SAG-AFTRA adds, "In the case of actors, an employer casting a
part may make a decision based on how young or old the actor
looks but may not exclude the actor from trying out for the
part simply because of his or her biological age. In other
words, an actor's biological age cannot be a bar to applying
for the part. We all know that frequently actors play the role
of persons that are different from their true biological age.
After all, the essence of acting is creating an illusion."
2)Age discrimination remains a stubborn problem. According to
studies, the recent economic downturn now known as the Great
Recession led to large increases in unemployment rates and
unemployment durations for workers of all ages, but duration
of unemployment rose far more for older workers than for
younger workers. Statistics from the U.S. Equal Employment
Opportunity Commission show that from 2006-2013, age
discrimination claims rose 38%. The AARP reports that, "Age
discrimination claims have been on the rise since 1997, when
15,785 reports were filed, according to the Equal Employment
Opportunity Commission. Last year, 21,396 claims were
recorded. Not every lawsuit is valid, experts say. Many are
settled without assigning blame. Companies are sometimes
hamstrung by the law from giving their side of the story in
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age discrimination cases. On the other hand, consumer
advocates and lawyers say recorded claims represent only a
slice of the total number of workers who get pushed out of a
job because they are older. One possible reason for the trend:
an aging population. More than 20% of workers in the United
States, some 33 million, are age 55 and up, according to the
Bureau of Labor Statistics." (Forced Out, Older Workers Are
Fighting Back, by Carole Fleck, AARP Bulletin, May 2014,
http://www.aarp.org/work/on-the-job/info-2014/workplace-age-dis
crimination-infographic.html , accessed April 22, 2015.)
Even the fear of age discrimination is troubling in the
entertainment industry, where one woman sued Internet Movie
Database (IMDb), an online cast and crew employment referral
site used by the entertainment community, for revealing her
age. In her complaint, the plaintiff pointed out that, "one is
perceived to be 'over-the-hill,' when approaching 40 in
Hollywood." She further alleges that age is such a powerful
employment screening factor, it is nearly impossible for an
up-and-coming actress, such as the Plaintiff, to get work as
she is thought to have less of an "upside" therefore casting
directors, producers, directors, agents/managers, etc. do not
give her the same opportunities, regardless of her appearance
and talent.
3)Long arm jurisdiction of California: Purposeful availment and
sufficient minimum contacts. This measure is targeted at
commercial online employment services, some of which are
located outside of California. In order for one state to
assert jurisdiction over a business located in another state,
the law requires that there be sufficient minimum contacts,
(e.g. contracts, directed advertisements or customers) for the
assertion of jurisdiction to be found reasonable. The United
States Supreme Court has decided a number of cases that have
established and refined the principle that it is unfair for a
court to assert jurisdiction over a party unless that party's
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contacts with the state in which that court sits are such that
the party "could reasonably expect to be hauled into court" in
that state. This jurisdiction must "not offend traditional
notions of fair play and substantial justice". International
Shoe Co. v. Washington, 326 U.S. 310 (1945).
A non-resident defendant has minimum contacts with the forum
state if they 1) have direct contact with the state; 2) have a
contract with a resident of the state; 3) have placed their
product into the stream of commerce such that it reaches the
forum state, 4) seek to serve residents of the forum state; 5)
have satisfied the Calder effects test; or 6) have a
non-passive website viewed within the forum state. (Citations
omitted.)
The test for whether websites may provide minimum contacts is
outlined in the Zippo decision, where the court found that
commercial websites which do a substantial volume of business
over the Internet, and through which customers in any location
can immediately engage in business with the website owner,
provides a basis for jurisdiction. Zippo Manufacturing Co. v.
Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
In this case, the proposed legislation is targeted to
commercial Internet sites which knowingly do business with
California residents through exchanging payment for the
service of posting resumes and photographs on their site.
Thus, the bill appears to comply with the constitutional
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requirements for California to assert jurisdiction.
4)Prior and related legislation.
a) AB 2068 (Holden), Legislation of 2016, would require
talent services that post information about artists under
contract via online services, online applications, and
mobile applications, to remove photographs and other artist
information from those locations upon an artist's request
within 10 days. This measure is currently pending before
the committee.
b) AB 984 (Calderon) of 2015, would have prohibited
employers from using age and birthdate information found
online, as specified, to discriminate against job
applicants. Status: Held in the Assembly Appropriations
Committee.
5)Double-referral: Should this bill pass out of this committee,
it will be re-referred to the Assembly Committee on Privacy
and Consumer Protection.
REGISTERED SUPPORT / OPPOSITION:
Support
SAG-AFTRA (sponsor)
AB 1687
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California Labor Federation
Opposition
There is no opposition on file
Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)
319-3450