BILL NUMBER: AB 1450 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 25, 2012
AMENDED IN ASSEMBLY MARCH 14, 2012
INTRODUCED BY Assembly Member Allen
(Principal coauthors: Assembly Members Mendoza and Swanson)
(Coauthors: Assembly Members Alejo, Ammiano, Beall, Blumenfield,
Fong, Hall, Solorio, and Wieckowski)
JANUARY 5, 2012
An act to add Chapter 3.95 (commencing with Section 1045) to Part
3 of Division 2 of the Labor Code, and to add Section 10285.6 to the
Public Contract Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1450, as amended, Allen. Employment: discrimination: status as
unemployed.
Existing law contains provisions that define unlawful
discrimination and employment practices by employers and employment
agencies.
This bill would make it unlawful, unless based on a bona fide
occupational qualification or any other provision of law, for an
employer, an employment agency, or a person who operates an Internet
Web site for posting jobs in this state to take specified employment
actions relating to employment status, as defined, including, among
other things, refusing to hire a person because of that person's
employment status and publishing an advertisement or announcement for
any job that includes provisions pertaining to an individual's
current employment or employment status, as specified.
This bill would subject an employer, an employment agency, or a
person who operates an Internet Web Site for posting jobs in this
state who violates the above provisions to civil penalties that
increase as the number of violations increase.
The State Contract Act governs contracting between state agencies
and private contractors, and sets forth requirements for the
procurement of materials, supplies, equipment, and services by state
agencies.
This bill would provide that failure to comply with the
requirements of the bill would constitute a breach of the
a contract entered into on or after January
1, 2013, and may be grounds for canceling, terminating, or
suspending the contract, as specified, and debarring the contractor
from eligibility for an award of future state agency contracts for a
period not to exceed 3 years, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 3.95 (commencing with Section 1045) is added to
Part 3 of Division 2 of the Labor Code, to read:
CHAPTER 3.95. EMPLOYMENT DISCRIMINATION ON THE BASIS OF
EMPLOYMENT STATUS
1045. For purposes of this chapter, the following definitions
apply:
(a) "Contractor" means a person who is a party to a contract with
a state governmental agency, including any department, division,
subcontractor, or other unit that is responsible for performance
under the contract. "Contractor" does not include a state
government governmental agency.
(b) "Employer" means a person who has 15 or more employees for
each working day in each of 20 or more calendar weeks in the current
or preceding calendar year and includes both of the following:
(1) A person who acts, directly or indirectly, in the interest of
an employer with respect to employing individuals to work for the
employer.
(2) A successor in interest of an employer.
(b) "Employer" means the state or any political or civil
subdivision of the state and any person, as defined in Section 18,
who directly or indirectly, or through an agent or any other person,
employs or exercises control over the wages, hours, or working
conditions of any person.
(c) "Employment agency" has the same meaning as defined in Section
1812.501 of the Civil Code.
(d) "Employment status" means an individual's present
unemployment, regardless of the length of time that the individual
has been unemployed.
1046. (a) Unless based on a bona fide occupational qualification,
an employer shall not do any of the following:
(1) Refuse to consider for employment
Exclude an applicant from the applicant pool at any stage of the
hiring process or refuse to offer employment to an individual
because of the individual's employment status.
(2) Publish in print, on the Internet, or in any other medium an
advertisement or announcement for any job that includes either of the
following:
(A) A provision stating or indicating that an individual's current
employment is a requirement for a job.
(B) A provision stating or indicating that an employer will not
consider an applicant for employment based on that individual's
employment status.
(3) Direct or request that an employment agency take an individual'
s employment status into account in screening or referring applicants
for employment.
(b) Unless based on a bona fide occupational qualification, an
employment agency shall not do any of the following:
(1) Refuse to offer employment to an individual, or to
consider or exclude an individual from the applicant
pool at any stage of the hiring process, or fail to refer an
individual for employment because of the individual's employment
status.
(2) Limit, segregate, or classify individuals in any manner that
may limit their access to information about jobs or referral for
consideration of jobs because of their employment status.
(3) Publish in print, on the Internet, or in any other medium an
advertisement or announcement for any job that includes either of the
following:
(A) A provision stating or indicating that an individual's current
employment is a requirement for a job.
(B) A provision stating or indicating that an employer will not
consider an applicant for employment based on that individual's
employment status.
(c) Unless based on a bona fide occupational qualification, a
person who operates an Internet Web site for posting jobs in this
state shall not publish on that Internet Web site an advertisement or
announcement for any job that includes:
(1) A provision stating or indicating that an individual's current
employment is a requirement for a job.
(2) A provision stating or indicating that an employer will not
consider an applicant for employment based on that individual's
employment status.
(d) This chapter does not prohibit an employer, an employment
agency, or a person operating an Internet Web site for posting jobs
in this state from doing either of the following:
(1) Publishing, in print, on the Internet, or in any other medium,
an advertisement or announcement for any job that sets forth other
lawful qualifications for a job, including, but not limited to, the
holding of a current and valid professional or occupational license,
certificate, registration, permit, or other credential, or a minimum
level of education or training or professional, occupational, or
field experience.
(2) Printing or circulating or causing to be printed or circulated
a publication, advertisement, or solicitation for a job vacancy that
contains any provision stating that only applicants who are
currently employed by that employer will be considered.
(e) An employer, an employment agency, or a person operating an
Internet Web site for posting jobs in this state shall not do either
of the following:
(1) Interfere with, restrain, or deny the exercise of or the
attempt to exercise any right provided under this chapter.
(2) Discriminate against any individual because the individual:
(A) Opposed any practice made unlawful by this chapter.
(B) Has caused to be instituted any proceeding under or related to
this chapter.
(C) Has given, or is about to give, any information in connection
with any inquiry or proceeding relating to any right provided under
this chapter.
(D) Has testified, or is about to testify, in any inquiry or
proceeding relating to any right provided under this chapter.
(f) An employer, an employment agency, or a person operating an
Internet Web site for posting jobs in this state who violates this
section shall be subject to a civil penalty in an amount not to
exceed one thousand dollars ($1,000) for the first violation, five
thousand dollars ($5,000) for the second violation, and ten thousand
dollars ($10,000) for each subsequent violation, enforceable by the
Labor Commissioner pursuant to the procedures specified in Chapter 4
(commencing with Section 79) of Division 1.
1047. (a) A contract entered into on or after January
1, 2013, between a state agency and a contractor who is an employer
shall include an express or implied requirement that the contractor
comply with the requirements of this chapter. Failure to comply with
the requirements of this chapter, as determined by the Labor
Commissioner, pursuant to subdivision (f) of Section 1046, shall
constitute a breach of the contract and may be grounds for canceling,
terminating, or suspending the contract, and debarring the
contractor from eligibility for future state agency contracts.
(b) In accordance with regulations adopted by the Division of
Labor Standards Enforcement, and upon determining that a contractor
who is an employer has violated this chapter, the Labor Commissioner
may, after consulting with the contracting state agency, do any or
all of the following:
(1) Direct the state agency to cancel, terminate, or suspend the
contract, or any segregable portion thereof.
(2) Debar the contractor from eligibility for an award of a future
state agency contract for a period not to exceed three years.
1048. This chapter does not preclude an employer, an employment
agency, or a person who operates an Internet Web site for posting
jobs in this state from considering an individual's employment
history or from examining the reasons underlying an individual's
employment status in assessing an individual's ability to perform a
job or in otherwise making employment decisions pertaining to that
individual.
1048. This chapter does not preclude an employer, an employment
agency, or a person who operates an Internet Web site for posting
jobs in this state from doing any of the following:
(a) Obtaining information regarding an individual's employment,
the dates of employment, or the reasons for the separation from
employment.
(b) Having knowledge of a person's employment status.
(c) Considering an individual's employment history or the reasons
underlying an individual's employment status.
(d) Refusing to offer employment to a person because of the
reasons underlying an individual's employment status.
(e) Otherwise making employment decisions pertaining to that
individual.
SEC. 2. Section 10285.6 is added to the Public Contract Code, to
read:
10285.6. A contractor, as defined in Section 1045 of the Labor
Code, who has been debarred by the Labor Commissioner pursuant to
Section 1047 of the Labor Code for a period not to exceed three
years, shall be ineligible during that time for an award of a
contract pursuant to this chapter.