BILL ANALYSIS SB 208 Page 1 Date of Hearing: July 10, 2001 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Lou Correa, Chair SB 208 (Alpert) - As Amended: July 3, 2001 SENATE VOTE : 25-1 SUBJECT : Private investigators: exemption from licensure. SUMMARY : Exempts, under specified conditions, an independent contractor who possesses a certificate or degree in human resource management, and who analyses and makes recommendations regarding workplace harassment incidents, from the Private Investigator Act (PI Act). Specifically, this bill : 1)Exempts an individual from the PI Act who meets all of the following: a) Possesses a certificate in human resource management from a California based or national association of human resource professionals whose primary function is professional education and issuance of certificates evidencing competency in human resource management; or holds a certificate/degree in human resources management from an accredited college or university that is recognized by the U.S. Department of Education and certifies in writing by solemn affirmation that they have more than 1000 hours of human resource experience. a) Has completed coursework in human resource management. a) Is acting as an independent contractor who conducts interviews and obtains and reviews relevant documents relating to accusations or incidents of harassment in the workplace solely to provide the following types of services: i) Recommendations for corrective action regarding harassment in the workplace. ii) Assessments of harassment in the workplace. iii) Harassment prevention workshops for management and employees. iv) Written policies and procedures for harassment prevention in the workplace. SB 208 Page 2 a) Has not previously been denied licensure in this state, or any other state, and has not had his or her license revoked by the Bureau of Security and Investigative Services (BSIS) or a similar agency in any other state. a) Maintains an office in the state. 1)Provides that human resource professionals shall not have access to confidential information available to PIs solely by virtue of their PI license. EXISTING LAW : 1)Provides for licensure and regulation of private PIs by the Bureau of Security and Investigative Services of the Department of Consumer Affairs (DCA). 2)Establishes experience and related qualifying criteria to be licensed as a PI. 3)Defines business activities of a PI for which a license is required. 4)Specifies persons who are exempt from PI licensure requirements. In particular, provides an exemption for persons employed exclusively and regularly by any employer who does not provide contract security services for other entities or persons. 5)Provides 14 exemptions from licensing requirements, including persons who work regularly and exclusively for one employer, government employees, attorneys, insurance adjusters and others in the insurance business, banks and savings and loan associations, persons who obtain information solely from public records and others. FISCAL EFFECT : Unknown. Legislative Counsel has keyed this bill non-fiscal. COMMENTS : The purpose of this bill is to exempt from the PI Act human resource professionals who are independent contractors investigating allegations of harassment in the workplace. SB 208 Page 3 According to the author, under existing law, human resource professionals who are employed in-house may investigate workplace harassment incidents as part of their overall work, which involves making recommendations for corrective action regarding harassment, training management and employees on harassment prevention, and preparing written policies and procedures. However, the author states that a recent administrative interpretation of existing law concluded that human resource professionals who are independent contractors can not be employed to investigate workplace harassment incidents as part of their overall work unless they have a PI license. The author believes this bill is necessary to allow independent human resource professionals to conduct investigations in the same fashion as in-house human resource professionals. According to the author, independent contractors have conducted such investigations dating back to the early eighties, and it is only the recent administrative interpretation of law that is now hindering their ability to perform the work they have traditionally carried out. This bill's sponsor, Professionals in Human Resources Association (PIHRA), claims there have been no significant problems stemming from independent human resource professionals. PIHRA argues that employers value the services provided by independent human resource professionals that help resolve harassment issues and help prevent incidents of workplace harassment. PIHRA claims that a human resource professional investigates incidents of workplace harassment with an objective dissimilar to that of a private investigator. The purpose is not to piece together a case for legal proceedings, but rather to get to the source of an incident, resolve the situation and install provisions that will prevent further incidents from occurring. BSIS currently regulates approximately 9,539 licensed PI's in the state. Among the regulated, are 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. A PI applicant must be able to demonstrate three years (2,000 hours each year, totaling 6,000 hours) of compensated experience SB 208 Page 4 in investigative work; or a law or police science degree plus two years (4,000 hours) of experience; or an AA degree in police science, criminal law, or justice plus 2 1/2 years (5,000 hours) of experience. In addition, an applicant must undergo a thorough background check and pass a two-hour multiple-choice examination covering laws and regulations, terminology, civil and criminal liability, evidence handling, undercover investigations, and surveillance. Last year, members of the Legislature requested DCA to review the issue of subjecting human resource professionals to the PI Act. DCA determined that employers often contract with independent human resource professionals to conduct investigations into a variety of alleged unlawful discrimination, inappropriate workplace conduct, including unlawful sexual harassment and employee violations of policy or procedures. DCA ultimately concluded that under the PI Act, independent contractors should be required to possess a valid PI license issued by BSIS. According to information provided by PIHRA, the Society for Human Resource Management a national professional development organization with over 150,000 members, issues two types of certificates - the Professional in Human Resources Certification and the Senior Professional in Human Resource Certification. Both certifications are conferred after the applicant passes a comprehensive, four-hour exam, which contains questions in all aspects of human resources management, including workplace investigations, staffing, recruitment, policies and procedures, employee and labor relations, general employment practices, compensation and benefits, and health, safety and security. Opponents argue that this bill eliminates several statutory protections for employees. The California Association of Licensed Investigators (CALI), as well as individual private investigators, claim this bill puts employee rights at risk whether they are the person making the complaint of harassment or the person who is the subject of the harassment complaint. CALI believes all employees are entitled to a fair and unbiased inquiry into allegations of misconduct conducted by a qualified individual who is licensed by the state. In particular, CALI argues that this bill would remove the following statutory protections: SB 208 Page 5 1)Current law protects employees from substandard investigations. State law requires individuals who conduct workplace investigations to have extensive experience and training that is directly applicable to the investigation of harassment claims. Required training involves strategic structuring of investigative questions, understanding of body language as well as knowledge of objective interviewing techniques. 2)Current law protects privacy rights of employees. State law requires individuals who conduct workplace investigations to maintain confidentiality of information that is obtained in an investigation, and results of an investigation to be provided only to their client and to courts in this state. 3)Current law protects the legal rights of employees. State law requires individuals who conduct workplace investigations to be educated in the rules of evidence and legal court procedures. This education is important when investigating a claim of sexual harassment or any workplace misconduct that may result in legal action. Courts readily admit results of their investigations into evidence, and the absence of bias is critical. 4)Current law protects employees from fraudulent investigations. State law requires individuals who conduct workplace investigations to be subject to oversight by DCA. Private investigators must pass a background check as well as fingerprint checks by the Department of Justice and Federal Bureau of Investigations. PI's cannot engage in dishonest or fraudulent activity and they are subject to criminal prosecution for violations. REGISTERED SUPPORT / OPPOSITION : Support Professionals in Human Resources Association (PIHRA) (sponsor) California Chamber of Commerce California Retailers Association (CRA) California State Council of SHRM Humanasaurus - Human Resource Consultants Los Angeles County District Attorney's Office Opposition SB 208 Page 6 1st Investigative Group 21st Century Investigations AD young Investigative Agency AvantGuard Security Consulting B&R Enquiries B.P.J. Investigations Benchmark Investigations Bernard Georger Investigations, Inc. Berta & Associates Bill Thompson Investigations Bill Thompson Investigator Bob Peters Investigations Boykoff Investigations Brady Investigations Bruce A. Haskett & Associates Investigations Bryson Investigations Bulldog Investigative Services California Association of Licensed Investigators Cannon Street Central Point Investigations Cheryl A. Dorsey Investigations Chris Reynolds Investigations Christopher Webster Investigations Christopher Webster Investigations Clark & Co. Investigations Clear Perceptions Coast Guardian Investigations, Inc. Cody Investigative Group Command Presence Investigation Agency Confidential Research Company Cordis Bilingual Services Cynthia Erdelyi Investigations, CPI Descreet Investigative Group DGA Detectives Dias Investigations A.Donaldson Investigations DYJ D.Y. Jones & Associates Incorporated El Dorado Detective Agency Eshom Investigative Services Fountain Investigations Frasco Investigative Services G.A.B. Investigations Geraldi and Asssociates Private Investigations Ginter Investigations, Inc. SB 208 Page 7 Glickman Investigations Goldsmith Investigations Herrera Investigative Services, Inc. Inquire Investigative Services Integrated Insurance Investigations Intelle Quest Investigations Jean Kyles & Associates Private Investigations JGC Investigations jmn investigations Joseph T. Grills, Jr. Private Investigator/Drug Policy Consultant JSM Enterprises Jus' T Investigations Kelly Investigative Agency Klopper Investigations Krout And Schnider, Inc. Lassen Investigative Services Law Offices of Charles H. Ervin Law Offices of Roy J. Fleischer, Sr. Magill & Associates Marvin T. Frost Investigations Mathis Investigations McCormick Investigations McReynolds & Associates Professionals Investigations Michael J. Martin Investigations Michael J. Martin Investigations Paula Drake Investigations Peace Officers Research Association of California (PORAC) Perrin Investigative Services Pexis Corporation Investigative Division PI Paul Ingels Investigations Pre-Employ.Com Private Investigative Services R.B. Smoke & Associates Rancho Santa Fe Protective Services, Inc. Rex Molitor Investigations Richard L. Barnes & Associates RRPI Insurance Service, Inc./Buckeye Claims Administrators Russel L. Bush Investigations S.C. Passanisi Investigations San Fernando Valley Chapter National Organization for Woman Sarkis Detective Agency Savala & Associates Shaw Investigations Shoreline Investigations SB 208 Page 8 Smyth Investigation Services, Inc. Source Investigations Group, Inc. Source Investigative Group, Inc. Southern California Media Guild --The Newspaper Gild-Communication Workers of America-Local 39069 Steve J. Wachtel Private Investigator Stewart Investigative Services, Inc. Sunset West Investigations T.H. Taylor & Associates Private Investigations Tamara Thompson Investigations The Amherst Group The Lawrence & Eagleson Agency Thin Blue Line Investigations United Steelworkers of America - Local 8433 W.F. Witten & Associates Investigative Consultants Wallace Investigative Services Walsh & Associates International Intelligence West Harbor Intelligence Inc. William Investigations William T. Doyle, Private Investigator Individual Private Investigators Analysis Prepared by : Chris L. Gallardo / B. & P. / (916) 319-3301