BILL ANALYSIS AB 671 page ---------------------------------------------------------- |Hearing Date:June 14, 1999 | Bill No:AB 671| ---------------------------------------------------------- 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. AB 671 page 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 AB 671 page 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) AB 671 page 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 AB 671 page 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