BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                    AB 22|
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                                 THIRD READING


          Bill No:  AB 22
          Author:   Mendoza (D), et al
          Amended:  5/12/11 in Assembly
          Vote:     21

           
           SENATE LABOR & INDUSTRIAL RELATIONS COMM.  :  5-1, 6/22/11
          AYES:  Lieu, DeSaulnier, Leno, Padilla, Yee
          NOES:  Wyland
          NO VOTE RECORDED:  Runner

           SENATE JUDICIARY COMMITTEE  :  3-2, 6/28/11
          AYES:  Evans, Corbett, Leno
          NOES:  Harman, Blakeslee

           SENATE APPROPRIATIONS COMMITTEE  :  6-2, 8/15/11
          AYES:  Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
          NOES:  Walters, Emmerson
          NO VOTE RECORDED:  Runner

           ASSEMBLY FLOOR  :  45-29, 5/19/11 - See last page for vote


           SUBJECT  :    Employment:  credit reports

           SOURCE  :     California Labor Federation


           DIGEST  :  This bill prohibits an employer, with the 
          exception of certain financial institutions, from obtaining 
          a consumer credit report, as defined, for employment 
          purposes unless the information is  (1) substantially 
          job-related, meaning that the position of the person for 
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          whom the report is sought has access to money, other 
          assets, or confidential information, and (2) the position 
          of the person for whom the report is sought is a position 
          in the state Department of Justice, a managerial position, 
          as defined, that of a sworn peace officer or other law 
          enforcement position, or a position for which the 
          information contained in the report is required to be 
          disclosed by law or to be obtained by the employer.

           ANALYSIS  :    Existing federal and state law limits the use 
          of credit information for employment purposes.   
          "Employment purposes," when used in connection with a 
          consumer credit report, means a report used for the purpose 
          of evaluating a consumer for employment, promotion, 
          reassignment, or retention as an employee.  
             
          The existing federal Fair Credit Reporting Act (FCRA) was 
          enacted to promote accuracy, fairness, and privacy of 
          personal information assembled by consumer credit reporting 
          agencies.  The FCRA regulates how employers may use 
          consumer reports, which are defined as reports containing 
          information pertaining to a person's credit worthiness, 
          credit standing, credit capacity, character, general 
          reputation, personal characteristics, or mode of living. 

          The FCRA does not exempt employers from complying with 
          state law governing background checks.  If information from 
          a credit report is used for employment purposes, the FCRA 
          requires that the employer:

           Make a clear and conspicuous written disclosure to the 
            applicant before the report is obtained, as specified.

           Obtain prior written authorization from the applicant.

           Certify to the Consumer Reporting Agency that the 
            employer disclosed and obtained authorization to review 
            the credit report and disclosed to the applicant that the 
            information will not be used in violation of any federal 
            or state equal-opportunity law or regulation, as 
            specified. 

           Before taking an adverse action based on the credit 
            report, provide the person with notice of the adverse 

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            decision and the name, address, and telephone number of 
            the consumer reporting agency making the report.  In 
            addition, the employer is also required to give the 
            employee a copy of the credit report, a summary of FCRA 
            rights with information on how to dispute the contents of 
            the report, and other documents as specified. 

          The California Consumer Credit Reporting Agencies Act 
          (CCRAA), which is the state's counterpart to the FCRA, 
          generally regulates consumer credit reporting agencies.  
          Among other things, the CCRAA requires every consumer 
          credit reporting agency to allow a consumer, upon request 
          and with proper identification, to visually inspect all the 
          files pertaining to him or her that the agency maintains at 
          the time of the request.  The CCRAA allows consumers to 
          dispute inaccurate information and requires a consumer 
          credit reporting agency to reinvestigate disputed 
          information without charge. 


          The existing federal Gramm-Leach-Bliley Act prohibits 
          financial institutions from disclosing a consumer's 
          nonpublic personal information to a nonaffiliated third 
          party unless the financial institution  (1) provides the 
          consumer with a clear and conspicuous disclosure of the 
          financial institutions' specified privacy policies and 
          practices,  (2) gives the consumer the opportunity to stop 
          the disclosure before the information is initially 
          disclosed (opt-out), and  (3) provides the consumer with an 
          explanation of how to exercise his or her right to opt-out. 


          This bill prohibits an employer from obtaining a consumer 
          credit report for employment purposes, except as specified. 
           Specifically, this bill:

          1. Prohibits the use of a consumer credit report for 
             employment purposes unless:

             A.    The information contained in the report is 
                substantially job-related, meaning that the position 
                has access to money, other assets, or confidential 
                information.


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             B.    The position is any of the following:

                (1)      A managerial position.
                (2)      A position in the state Department of 
                   Justice.
                (3)      A sworn peace officer or other law 
                   enforcement position.
                (4)      A position for which the information 
                   contained in the report is required to be 
                   disclosed by law or to be obtained by the 
                   employer. 

          2. Specifies that these provisions do not apply to a person 
             or business subject to the federal Gramm-Leach-Bliley 
             Act (governing financial institutions) and implementing 
             regulations, if the person or business is subject to 
             compliance oversight by a state or federal regulatory 
             agency with respect to those laws.

           Comments
           
           Need for this bill  ?  Employers frequently use credit 
          reports to evaluate job applicants for employment 
          opportunities.  There are three national reporting 
          agencies, TransUnion, Equifax, and Experian, which often 
          provide credit information to employers through 
          intermediary companies.  In the past, generally only banks 
          and financial service companies routinely ran credit checks 
          on potential employees, but today employers in other 
          sectors are increasingly including credit reports in the 
          screening process to verify identity, employment history 
          and presumably to assess applicants' honesty, integrity, 
          and responsibility, among other traits.

          According to the United States Equal Employment Opportunity 
          Commission (EEOC), as employer credit checks have become 
          more common over the past several years the EEOC has 
          reiterated its concerns that credit check policies can have 
          an unlawful disparate impact in violation of Title VII's 
          prohibitions against race and national origin 
          discrimination.   According to the EEOC, as early as the 
          1970s, the Commission issued decisions finding that 
          employers could violate Title VII by basing employment 
          decisions on a worker's financial status.  (EEOC Testimony, 

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          March 19, 2009)  This bill prohibits an employer, with the 
          exception of certain financial institutions, from obtaining 
          a consumer credit report for employment purposes, except as 
          specified.

          This bill is substantially similar to bills approved by 
          this Committee in each of the past three years that were 
          ultimately vetoed by Governor Schwarzenegger.  This bill 
          bans the use of consumer credit reports in employment 
          unless two criteria are met.  First, the information in the 
          credit report must be substantially job-related, where the 
          applicant or promotion candidate would have access to 
          money, other assets, or confidential information.  Second, 
          the position sought is either managerial, a sworn peace 
          officer, or the information is already required to be 
          disclosed by law or to be obtained by the employer.  This 
          bill also exempts financial institutions already subject to 
          existing privacy requirements under federal law.  

           Consumer Credit Reporting Legislation in Other States and 
          at the Federal Level  .  In 2007, Washington State enacted a 
          law (Chapter 93, Laws of 2007) that prohibits a person from 
          procuring a consumer report for employment purposes where 
          any information contained in the report bears on the 
          consumer's credit worthiness, credit standing, or credit 
          capacity, unless the information is either substantially 
          job-related and the employer's reasons for the use of such 
          information are disclosed to the consumer in writing, or is 
          required by law.  

          In July 2009, Hawaii became the second state behind 
          Washington to limit the use of employment credit history or 
          credit reports unless it is directly related to a bona fide 
          occupations qualification or falls under another exception. 
            

          On May 29, 2010, Oregon's Governor signed legislation (SB 
          1045) that prohibits employers from using credit history in 
          making hiring, discharge, promotion, and compensation 
          decisions unless the applicant or employee is given 
          advanced written notice and the credit history is 
          substantially related to the position sought.  

          Also in 2010, Illinois passed HB 4658, which prohibits 

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          consumer reports for employment purposes unless credit 
          history is an established bona fide occupational 
          requirement, as defined.  

          On April 12, 2011, Maryland's Governor signed into law the 
          Maryland Job Applicant Fairness Act (Chapter #29), which 
          prohibits employers from using an applicant's or employee's 
          credit report in determining whether to deny employment, 
          discharge the employee, or determine compensation or the 
          terms, conditions, or privileges of employment. 

          Finally, on June 8th, 2011, Connecticut approved SB 361 
          which bans the use of credit reports in hiring and 
          promotions in certain situations by certain employers.  The 
          bill now goes to the Governor for a signature. 

          At the federal level, Representative Steve Cohen and 
          Senator Diane Feinstein have both introduced legislation 
          over the past couple of years in efforts to limit the use 
          of consumer credit reports for employment purposes. This 
          year, H.R. 321: Equal Employment for All Act, introduced by 
          Representative Cohen, would amend the Fair Credit Reporting 
          Act to prohibit the use of consumer credit checks against 
          prospective and current employees for the purpose of making 
          adverse employment decisions. H.R. 321 is currently pending 
          consideration in the House Subcommittee on Insurance, 
          Housing and Community Opportunity.  

           Prior Legislation
           
          AB 482 (Mendoza) of 2009-10 Session, is similar to this 
          bill, which would have prohibited employers from using a 
          consumer credit report for employment purposes, with 
          certain exceptions.  This bill was vetoed by Governor 
          Schwarzenegger, in his veto message the Governor stated, 
          "This bill is similar to legislation I have vetoed for the 
          last two years on the basis that California's employers and 
          businesses have inherent needs to obtain information about 
          applicants for employment and existing law already provides 
          protections for employees from improper use of credit 
          reports.  As with the last two bills, this measure would 
          also significantly increase the exposure for potential 
          litigation over the use of credit checks." 


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          AB 943 (Mendoza) of 2009-10 Session, is similar to this 
          bill which would have prohibited the use of consumer credit 
          reports for employment purposes, as specified.  AB 943 was 
          vetoed by Governor Schwarzenegger. 

          AB 2918 (Lieber) of 2007-08 Session, would have prohibited, 
          except as specified, a user from procuring a consumer 
          credit report for employment purposes unless the 
          information in the report was either substantially job 
          related, as defined, or required by law.   AB 2918 was 
          vetoed by Governor Schwarzenegger.

          SB 986 (Escutia) of 2005-06 Session would have required 
          that when a consumer credit report or investigative report 
          is used for employment purposes, the information be 
          directly related to the skills necessary to perform the 
          job.  This bill was withdrawn by the author. 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  No

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions          2011-12           2012-13            
           2013-14             Fund  

          New enforcement          Up to $58      Up to $115      Up 
          to $115       Special*
            Requirements

          *Labor Enforcement and Compliance fund

           SUPPORT  :   (Verified  8/17/11)

          California Labor Federation (source)
          ACLU
          AFSCME
          California Coalition for Women Prisoners
          California Conference Board of the Amalgamated Transit 
          Union
          California Commission on the Status of Women
          California Conference of Machinists

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          California Employment Lawyers Association
          CA NOW (National Organization for Women)
          California Nurses Association
          California Reinvestment Coalition
          California School Boards Association
          California Teamsters Public Affairs Council
          Consumer Action
          Consumer Attorneys of California
          Consumer Federation of California
          Communication Workers of America
          Demos
          East Bay Community Law Center
          Engineers and Scientists of California
          International Alliance of Theatrical State Employees, Local 
          80
          International Longshore & Warehouse Union
          Legal Services for Prisoners with Children
          Los Angeles County Democratic Party
          Metro Chamber of Commerce
          National Consumer Law Center
          National Employment Law Project
          Professional & Technical Engineers, Local 21
          Privacy Rights Clearinghouse
          SEIU Local 1000
          UNITE HERE!
          United Food and Commercial Workers Union, Western States 
          Council

           OPPOSITION  :    (Verified  8/17/11)

          Apartment Association of Greater Los Angeles
          Apartment Association, California Southern Cities
          Apartment Association of Orange County
          Associated General Contractors
          Association of California Healthcare Districts
          Association of California Water Agencies
          California Apartment Association
          California Association for Health Services at Home
          California Association of Licensed Investigators 
          California Association of Realtors
          California Automotive Wholesalers' Association
          California Chapter of the American Fence Association 
          California Chamber of Commerce
          California Employment Law Council

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          California Fence Contractors' Association
          California Framing Contactors Association 
          California Grocers Association
          California Hospital Association
          California Independent Grocers Association 
          California Joint Powers Authority
          California New Car Dealers Association 
          California Restaurant Association
          California Retailers Association
          California Special Districts Association
          California State Association of Counties
          CoreLogic 
          Corona Valley Chamber of Commerce
          County Welfare Directors Association
          Engineering Contractors Association
          Experian
          Flasher Barricade Association
          Garden Grove Chamber of Commerce
          League of California Cities
          Marin Builders' Association
          National Federation of Independent Businesses
          Regional Council of Rural Counties
          San Diego County Apartment Association
          Santa Barbara Rental Property Association
          Southwest California Legislative Council
          TechAmerica 
          TransUnion

           ARGUMENTS IN SUPPORT  :    Proponents of the measure argue 
          that working families in California are facing the worst 
          economic crisis since the Great Depression.  Unemployment 
          is at a twenty-five year high, and those who have jobs are 
          facing furloughs and wage cuts.  According to proponents, 
          in this economic climate particularly, a person's credit 
          history says nothing about his or her character or ability 
          to do a job effectively and responsibly.  The author 
          believes this bill is needed to ensure that job 
          opportunities will not be unfairly denied to those hit 
          hardest by the current economic crisis.   

          According to proponents, in the past, generally only banks 
          and financial service companies routinely ran credit checks 
          on potential employees.  But employers in other sectors 
          increasingly are including credit checks in the screening 

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          process presumably to assess applicants' honesty and 
          integrity, among other traits.  According to the sponsor, 
          the California Labor Federation, data shows that in 1998 
          only 25% of employers researched the credit history of job 
          applicants, but by 2006 that figure had reached 43% and 
          currently stands at 60%.  In addition, the author states 
          that the Equal Employment Opportunity Commission has 
          expressed concern that the use of credit reports in 
          employment may have a disparate impact against people of 
          color and women workers who are concentrated in low-wage 
          jobs. Proponents argue that this is unfair, as there is no 
          evidence of any correlation between credit score and job 
          performance.

          Proponents are also concerned that conducting credit checks 
          is flawed by the high rate of errors in credit reports as 
          well as the over reliance on out-dated information about an 
          individual.  In addition, proponents argue that the rise in 
          identity theft, data breaches, and the improper sale of 
          credit information, as well as negligence by credit 
          reporting agencies can all result in damaging information 
          appearing on an individual's credit report through no fault 
          of their own.  The author believes this bill would provide 
          an important worker protection without placing unreasonable 
          restrictions on employers.

           ARGUMENTS IN OPPOSITION  :    According to opponents of the 
          bill, employers strive to recruit and retain the best 
          employees who they trust and will help grow their 
          businesses.  To this end, opponents argue, consumer credit 
          reports provide important insight into one aspect of a 
          potential employee's ability to handle responsibility for 
          cash, other assets, and personal information while at the 
          same time allowing employers to verify an applicant's 
          employment history. 

          Opponents maintain that while an individual's credit 
          history by itself is not predictive of potential theft, 
          access to credit information can reveal patterns that may 
          present an unreasonable risk to businesses.  Furthermore, 
          opponents argue that employee theft is a growing problem.  
          Opponents contend that the National Retail Security Survey 
          in 2009 confirmed that employee theft was responsible for 
          over 40% of retail employer loss nationwide, amounting to 

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          approximately $15.9 billion. Opponents believe that an 
          employee with high consumer debt who handles cash or assets 
          may be more likely to steal.  

          According to opponents, this bill prohibits employers from 
          performing their due diligence in screening applicants, 
          thus subjecting employers to a greater risk of 
          inadvertently violating the law or being subject to 
          frivolous employment litigation.  In addition, opponents 
          believe that by restricting access to important information 
          found in consumer credit reports; this bill may expose the 
          business' customers and employees to increased risks such 
          as identity, financial, and asset theft.  This issue is of 
          particular concern to the rental housing industry which 
          argues that many of their employees have significant 
          financial responsibilities, including the collection of 
          rents and maintenance of on-site cash flow, yet this bill 
          would prohibit them from using consumer credit reports when 
          considering applicants for employment.  

          Several associations representing local government oppose 
          this bill unless amended to restore an exemption for city 
          and county positions from the general prohibition against 
          use of credit reports-a provision that was amended out of 
          the bill on March 8, 2011. According to this group of 
          opponents, counties and cities use credit reports in 
          pre-employment screening for employees that work in police, 
          sheriffs' and various personnel and fiscal offices and have 
          access to confidential information.  They believe that the 
                     targeted use of credit reports is critical to hiring a 
          dependable public workforce with the responsibility to 
          handle taxpayer information and money.

          Overall, opponents of the measure argue that this bill 
          unduly restricts the ability of businesses to use all 
          legally available information in employment decisions.  
          With regard to similar legislation in other states, 
          opponents argue that such legislation is not nearly as 
          restrictive as this bill.  
           

           ASSEMBLY FLOOR  : 
          AYES: Allen, Ammiano, Atkins, Beall, Block, Blumenfield, 
            Bonilla, Bradford, Brownley, Buchanan, Butler, Charles 

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            Calderon, Campos, Carter, Cedillo, Davis, Dickinson, Eng, 
            Feuer, Fong, Fuentes, Furutani, Gordon, Hall, Hayashi, 
            Roger Hernández, Hill, Hueso, Huffman, Lara, Bonnie 
            Lowenthal, Mendoza, Mitchell, Monning, Pan, V. Manuel 
            Pérez, Portantino, Skinner, Solorio, Swanson, Torres, 
            Wieckowski, Williams, Yamada, John A. Pérez
          NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly, 
            Fletcher, Beth Gaines, Garrick, Gatto, Grove, Hagman, 
            Halderman, Harkey, Huber, Jeffries, Jones, Knight, Logue, 
            Mansoor, Miller, Morrell, Nestande, Nielsen, Norby, 
            Olsen, Silva, Smyth, Valadao, Wagner
          NO VOTE RECORDED: Alejo, Chesbro, Galgiani, Gorell, Ma, 
            Perea


          PQ:do  8/17/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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