BILL ANALYSIS                                                                                                                                                                                                    

                                                           AB 671
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|Hearing Date:June 14, 1999     |            Bill No:AB 671|
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          SENATE COMMITTEE ON BUSINESS AND PROFESSIONS
                      Senator Liz Figueroa

              Bill No:        AB 671Author:Campbell
               As Amended:April 5, 1999 Fiscal: No


SUBJECT:  Private Investigator Act:  exemption from  
licensure

SUMMARY:  Exempts "mystery shoppers" from state private  
investigator licensure requirements.

Existing law:

1)Requires licensure of private investigators by the Bureau  
  of Security and Investigative Services (BSIS) of the  
  Department of Consumer Affairs (DCA).

2)Establishes experience and related qualifying criteria  
  for licensure as a private investigator.

3)Defines the business activities of a private investigator  
  for which licensure is required.

4)Specifies persons who are exempt from these licensure  
  requirements.

This bill:

1)Exempts a person or business that provides objective  
  observations of consumer purchased products or services  
  only in public environments of business establishments by  
  use of a pre-established questionnaire, which may include  
  objective comments.

2)Specifies that the exemption from licensure as a private  
  investigator does not apply if the pre-established  
  questionnaire is used as the sole basis for evaluating an  
  employee's work performance. 





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FISCAL EFFECT:  None

COMMENTS:

1.Purpose.  This bill is intended to differentiate between  
  the activities of private investigators for which  
  extensive experience is required, and the activities of  
  mystery shoppers for which such extensive experience is  
  unnecessary, and to exempt the latter from the licensure  
  requirements.  This bill is sponsored by its author who  
  states that it would allow mystery shoppers to be hired  
  to evaluate a store's performance on customer service and  
  cleanliness.  Further, the author states the bill would  
  permit the use of objective observations by a mystery  
  shopper only with the use of a pre-established  
  questionnaire that cannot be used as the sole basis for  
  evaluating an employee.

2.Background.  Supporters of the bill draw the distinction  
  between "integrity shops" and "non-integrity shops" based  
  upon the intention for the shop.  The "integrity" shop is  
  intended to observe the performance of an employee for  
  honesty, etc., and form the basis for evaluating the  
  employee's performance and taking punitive action.  The  
  "non-integrity" shop is intended to evaluate the  
  company's level of customer service and appeal, and not  
  for employee discipline.  The bill would only exempt the  
  latter, specifying that they cannot be used as the sole   
  basis for evaluating an employee's work performance.

3.Licensure:  definition of private investigator,  
  exemptions, and experience requirements.  The current  
  definition of private investigator is very broad and  
  general.  It includes those who make an investigation for  
  the purpose of obtaining information with reference to:   
  the identity, habits, conduct, business occupation,  
  honesty, integrity, credibility, knowledge,  
  trustworthiness, efficiency, loyalty, activity, movement,  
  whereabouts, affiliations, associations, transactions,  
  acts, reputation, or character of any person.  The  
  current law also contains a broad list of exemptions from  
  the licensing requirement, including persons who work  
  regularly and exclusively for one employer, government  
  employees, attorneys, insurance adjusters and others in  
  the insurance business, banks and savings & loan  





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  associations, persons who obtain information solely from  
  public records and others.

An applicant for a private investigator license must  
  demonstrate at least three years of qualifying experience  
  (calculated at 2,000 hours = a year) in fields such as  
  law enforcement, military police, employment by a  
  licensed insurance adjuster, repossessor, or private  
  investigator - or 6,000 hours of experience altogether.

4.Arguments in Support.  The bill is supported by the  
  Mystery Shopping Providers Association (MSPA) which is  
  stated to be a national organization representing market  
  research firms doing mystery shopping and market research  
  in the United States and Canada and internationally.  The  
  MSPA states that the process of gathering customer  
  service information using mystery shoppers is a widely  
  accepted marketing practice.  As such, mystery shoppers  
  are not instructed to find fault or find people who  
  should be penalized or fined.  Instead, they are  
  instructed to describe what it was like to be a customer  
  in a business on a particular day, using a form that fits  
  the particular client business' environment.  The MSPA  
  states that while the bill would exempt mystery shopping  
  activities, any "security activities would still be the  
  responsibility of a licensed private investigator."

The form letters from individual supporters of the bill  
  (many of whom are business members of the MSPA) make the  
  same arguments. 

5.Arguments in Opposition.  The California Association of  
  Licensed Investigators (CALI) has an "Oppose Unless  
  Amended" position on the bill.  CALI has been concerned  
  that the bill would permit unlicensed persons without the  
  necessary expertise and experience to perform personnel  
  investigative activities that should be done by a  
  licensed private investigator.

CALI has requested four amendments from the author to  
  "refine the exception to the Private Investigator Act"  
  that would be established by the bill.  The amendments  
  are:  (a) clarify that businesses or persons who are  
  engaged in activities in addition to mystery shopping for  
  which licensure is required are not exempted from  
  licensure by the bill when doing those activities, (b)  





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  exclude the identity of a specific employee from the  
  questionnaire - to assure that it can't be used for  
  employee evaluations, (c) delete the proposed  
  authorization for a mystery shopper to add comments (the  
  bill refers to "objective comments") to the  
  pre-established questionnaire - since comments are  
  inherently subjective rather than objective, and (d)  
  require that the mystery shopper be an employee of the  
  mystery shopping company that hires him or her, and not  
  an independent contractor - to assure that there would be  
  some regulatory oversight and that taxes and benefits  
  would be paid.  

The form letters from individual opponents (many of whom  
  are licensed private investigators) assert that there  
  would be no training of the individuals who conduct these  
  investigations, and no oversight of their activities by  
  the
DCA.

Both CALI and the individual opponents say that the bill  
  would exempt mystery shopping companies which are  
  generally out-of-state businesses, many of whom operate  
  over the Internet to obtain the services of an in-state  
  mystery shopper (i.e., they advertise for shoppers over  
  the Internet from out-of-state.)  The MSPA states that  
  some of its members are California-based businesses while  
  others are from out-of-state.

6.Labor Code issue - Employee protection amendment needed.   
  Labor Code Section 2930 requires any employer who  
  disciplines or discharges an employee on the basis of a  
  shopping investigator's report of the employee's conduct,  
  performance or honesty that is performed by a  
  non-employee, licensed private investigator to provide  
  the employee with a copy of the investigation report  
  prior to disciplining or discharging the employee.  This  
  law also requires the report to be given to the employee  
  prior to the conclusion of an interview that is based  
  upon the report and that might result in the termination  
  of the employee for dishonesty.

"Shopping investigator" is defined  as a person who shops in  
  commercial, retail, and service establishments to test  
  the integrity of sales, warehouse, stockroom, and service  
  personnel, and evaluates sales techniques and services  





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  rendered customers; (among other specified activities).

There is a strong similarity of functions of a "shopping  
  investigator" vs. a "mystery shopper, " and the bill's  
  allowance for the latter's questionnaires to be used,  
  though not exclusively, to evaluate an employee's work  
  performance.   Should mystery shopper reports similarly be  
  required to be given to an employee pursuant to this  
  provision of the Labor Code?   Should the bill be  
  referred to the Senate Industrial Relations Committee?  

SUPPORT AND OPPOSITION:

Support:  Mystery Shopping Providers Association (MSPA)
       California Grocers Association
       California Restaurant Association
       California Retailers Association
       California Apartment Association
            California Association of Licensed Security  
     Agencies, Guards, &
              Associates      
       Numerous letters from individuals (many who are  
       business members
          of MSPA)              

 Opposition:California Association of Licensed  
           Investigators (CALI - Oppose Unless Amended)
          Numerous letters from individuals (many who are  
           private investigators)


Consultant:Jay J. DeFuria