BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
AB 1450 (Allen) - Employment: discrimination: status as
unemployed.
Amended: April 25, 2012 Policy Vote: L&IR 5-0 Judiciary
3-1
Urgency: No Mandate: No
Hearing Date: August 6, 2012 Consultant:
Bob Franzoia
This bill meets the criteria to be referred to the Suspense
File.
Bill Summary: AB 1450 would make it unlawful for an employer, an
employment agency, or a person who operates an Internet Web site
for posting jobs to take actions relating to employment status
including refusing to hire a person because of that person's
employment status and publishing an advertisement or
announcement that includes provisions pertaining to a person's
current employment status.
Fiscal Impact: Major costs annually to the Labor Enforcement and
Compliance Fund for the Department of Industrial Relations
(Labor Commissioner) to conduct investigations and make
determinations of alleged violations related to employment
status.
Unknown, potentially General Fund costs beginning July 1,
2013 when authorization for the fund sunsets
Unknown, likely minor additional contract oversight duties
annually to the Department of General Services.
Background: Existing law authorizes employers to conduct an
investigation, such as a background check, into a person's
character for employment purposes. Existing law also prohibits
harassment and discrimination in employment because of race,
color, religion, sex, and sexual orientation, among others.
Existing law does not address discrimination based on a person's
employment status.
Proposed Law: Specifically, this bill:
- Defines "employment status" as a person's present
unemployment, regardless of length of time that the person has
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been unemployed.
- Prohibits an employer, employment agency, or person who posts
jobs on an Internet Web site from doing generally (1) excluding
an applicant from the application pool at any stage of the
hiring process or refuse to offer employment to a person because
of his or her employment status and (2) advertising a job that
indicates an applicant's employment status is required for the
job, will be used to screen applications, or is considered as
part of the application process.
- Provides that after January 1, 2013 state contracts shall
require compliance with these requirements, and that failure to
comply may be grounds for cancelling the contract and debarring
the contractor for up to three year from eligibility for future
state contracts.
This bill would not preclude an employer, an employment agency,
or a person who operates an Internet Web site for posting jobs
from doing any of the following:
- Obtaining information regarding a person's employment, the
dates of employment, or the reasons for the separation from
employment.
- Having knowledge of a person's employment status.
- Considering a person's employment history or the reasons
underlying a person's employment status.
- Refusing to offer employment to a person because of the
reasons underlying an individual's employment status.
- Otherwise making employment decisions pertaining to that
person.
Staff Comments: Any employee or applicant for employment who
believes he or she was discharged or denied employment or
otherwise retaliated or discriminated against in violation of
any law under the jurisdiction of the department may file a
complaint with the department under Labor Codes 98.6 and 98.7.
(Filing a complaint does not preclude the filing of a private
lawsuit.) To investigate whether an alleged violator's action
was made under a bona fide occupational qualification is
workload intensive.
After a complaint is filed, the complaint will be reviewed to
confirm the department has jurisdiction over the specific
complaint. If it is found that the complaint comes under the
jurisdiction of the department it is assigned to a retaliation
complaint investigator who will contact the employer and any
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witnesses with information regarding the alleged discrimination
or retaliation. If appropriate, the investigator may request
the parties meet to explore the possibility of settlement.
Investigators have the authority to issue subpoenas to obtain
evidence related to the case. Once the investigation is
complete, if no settlement is reached, the investigator will
prepare a written summary of findings.
The Labor Commissioner will review the summary of findings and
make a determination. If the Labor Commissioner finds the
employer violated the law by retaliating or discriminating
against the employee or job applicant, the employer will be
given ten days to file an appeal or to comply with the
determination to remedy the retaliation or discrimination. If
the employer fails to comply, an attorney for the Labor
Commissioner will file a court action to enforce the
determination. On occasion, the Labor Commissioner may hold a
hearing to fully establish the facts of the complaint.
The department's retaliation complaint investigation unit has
approximately 1,300 pending cases and an estimated 15
investigators, two supervisors, one attorney and two office
technicians. Five investigators are dedicated to programs
related to occupational safety and health as required by federal
law.
For the purposes of representing a potential fiscal impact, if
this unit were to receive even one tenth of one percent of the
long term jobless population (approximately 700,000 persons have
been unemployed for at least a year) alleging a violation of the
bill's requirements, it could result in 700 new complaints. A
review of workload data indicates approximately 36 percent of
all filed complaints proceed to assignment to investigators for
investigation and determination following an initial review by a
supervisor. Assuming a similar rate, approximately 252 cases
would be filed for investigation and determination by the unit.
This would increase workload by 20 percent which would
necessitate additional staff for initial case review,
investigation, and review of determination, followed by file
processing and closing of cases.
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