Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2271

Introduced by Assembly Member Ian Calderon

February 21, 2014

An act to begin delete amend Section 98 of end delete begin insert add Chapter 3.95 (commencing with Section 1045) to Part 3 of Division 2 of end insert the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 2271, as amended, Ian Calderon. Employment: begin delete employee complaints. end delete begin insert discrimination: status as unemployed. end insert

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Existing law contains provisions that define unlawful discrimination and employment practices by employers and employment agencies.

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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 publish an advertisement or announcement for any job that includes provisions pertaining to an individual’s current employment or employment status, as specified.

end insert begin insert

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. This bill would also provide that no private right of action is authorized for a violation of these provisions.

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Existing law authorizes the Labor Commissioner to investigate and enforce statutes and orders of the Industrial Welfare Commission that, among other things, specify the requirements for the payment of wages by employers. Existing law provides for criminal and civil penalties for violations of statutes and orders of the commission regarding payment of wages.

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This bill would make technical, nonsubstantive changes to this provision.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Chapter 3.95 (commencing with Section 1045)
is added to Part 3 of Division 2 of the end insert begin insert Labor Code end insert begin insert , to read: end insert

begin insert

 

Chapter   begin insert 3.95. end insert Employment Discrimination on the Basis
of Employment Status

 

begin insert 1045. end insert   

For purposes of this chapter, the following definitions
apply:

(a) “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.

(b) “Employment agency” has the same meaning as defined in
Section 1812.501 of the Civil Code.

(c) “Employment status” means an individual’s present
unemployment, regardless of the length of time that the individual
has been unemployed.

begin insert 1046. end insert   

(a) Unless based on a bona fide occupational
qualification, an employer shall not do either of the following:

(1) Publish in print, on the Internet or in any other medium, an
advertisement or announcement for any job that includes a
provision stating or indicating that an individual’s current
employment is a requirement for the job.

(2) Affirmatively ask an applicant for employment to disclose,
orally or in writing, information concerning the applicant’s current
employment status until the employer has determined that the
applicant meets the minimum employment qualifications for the
position, as stated in the published notice for the job.

(b) Unless based on a bona fide occupational qualification, an
employment agency shall not do any of the following:

(1) Publish in print, on the Internet or in any other medium, an
advertisement or announcement for any job that includes a
provision stating or indicating that an individual’s current
employment is a requirement for a job.

(2) Limit, segregate, or classify an individual in any manner
that may limit that individual’s access to information about jobs
or referrals for consideration of jobs because of the individual’s
employment status.

(3) Affirmatively ask an applicant for employment to disclose,
orally or in writing, information concerning the applicant’s current
employment status until the employer has determined that the
applicant meets the minimum employment qualifications for the
position, as stated in the published notice for the job.

(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 a provision stating or
indicating that an individual’s current employment is a requirement
for a job.

begin insert 1047. end insert   

Nothing in this chapter shall be construed to prohibit
an employer, employment agency, or a person who operates an
Internet Web site for posting jobs in this state, or an agent,
representative, or designee of that employer, employment agency,
or Internet Web site, from:

(a) Publishing in print, on the Internet or in any other medium,
an advertisement or announcement for any job that contains any
provision setting forth qualifications for a job, including:

(1) Holding a current and valid professional or occupational
license, certificate, registration, permit, or other credential.

(2) Requiring a minimum level of education or training or
professional, occupational, or field experience.

(3) Stating that only individuals who are current employees of
the employer will be considered for that job.

(b) Setting forth qualifications for any job, including:

(1) Holding a current and valid professional or occupational
license, certificate, registration, permit, or other credential.

(2) Requiring a minimum level of education or training or
professional, occupational, or field experience.

(3) Stating that only individuals who are current employees of
the employer will be considered for that job.

(c) Obtaining information regarding an individual’s
employment, including recent relevant experience.

(d) Having knowledge of a person’s employment status.

(e) Inquiring as to the reasons for an individual’s employment
status.

(f) Refusing to offer employment to a person because of the
reasons underlying an individual’s employment status.

(g) Otherwise making employment decisions pertaining to that
individual.

begin insert 1048. end insert   

An employer, an employment agency, or a person
operating an Internet Web site for posting jobs shall not do either
of the following:

(a) Interfere with, restrain, or deny the exercise of, or the
attempt to exercise, any right provided under this chapter.

(b) Discriminate against any individual because the individual:

(1) Opposed any practice made unlawful by this chapter.

(2) Has instituted, or caused to be instituted, any proceeding
under or related to this chapter.

(3) Has provided, or is about to provide, any information in
connection with any inquiry or proceeding relating to any right
provided under this chapter.

(4) Has testified, or is about to testify, in any inquiry or
proceeding relating to any right provided under this chapter.

begin insert 1049. end insert   

An individual aggrieved by a violation of this chapter
may file a complaint with the Labor Commissioner. The Labor
Commissioner may impose a civil penalty against any employer,
employment agency, or person operating an Internet Web site for
posting jobs that the commissioner finds to be in violation of this
chapter. An employer, employment agency, or person operating
an Internet Web site for posting jobs that violates any provision
of this chapter shall be subject to a civil penalty of one thousand
dollars ($1,000) for the first violation of this chapter, five thousand
dollars ($5,000) for the second violation, and ten thousand dollars
($10,000) for each subsequent violation.

begin insert 1049.5. end insert   

Notwithstanding any provision of law, nothing in this
chapter shall be construed to create or authorize a private right
of action for a violation of this chapter.

end insert

begin delete

SECTION 1.  

Section 98 of the Labor Code is amended to read:

98.  

(a) The Labor Commissioner is authorized to investigate
employee complaints. The Labor Commissioner may provide for
a hearing in an action to recover wages, penalties, and other
demands for compensation, including liquidated damages if the
complaint alleges payment of a wage less than the minimum wage
fixed by an order of the Industrial Welfare Commission or by
statute, properly before the division or the Labor Commissioner,
including orders of the Industrial Welfare Commission, and shall
determine all matters arising under his or her jurisdiction. It is
within the jurisdiction of the Labor Commissioner to accept and
determine claims from holders of payroll checks or payroll drafts
returned unpaid because of insufficient funds, if, after a diligent
search, the holder is unable to return the dishonored check or draft
to the payee and recover the sums paid out. Within 30 days of the
filing of the complaint, the Labor Commissioner shall notify the
parties as to whether a hearing will be held, whether action will
be taken in accordance with Section 98.3, or whether no further
action will be taken on the complaint. If the determination is made
by the Labor Commissioner to hold a hearing, the hearing shall
be held within 90 days of the date of that determination. However,
the Labor Commissioner may postpone or grant additional time
before setting a hearing if the Labor Commissioner finds that it
would lead to an equitable and just resolution of the dispute. A
party who has received actual notice of a claim before the Labor
Commissioner shall, while the matter is before the Labor
Commissioner, notify the Labor Commissioner in writing of a
change in that party’s business or personal address within 10 days
after the change in address occurs.

It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
rights of the parties.

(b) When a hearing is set, a copy of the complaint, which shall
include the amount of compensation requested, together with a
notice of time and place of the hearing, shall be served on all
parties, personally or by certified mail, or in the manner specified
in Section 415.20 of the Code of Civil Procedure.

(c) Within 10 days after service of the notice and the complaint,
a defendant may file an answer with the Labor Commissioner in
a form as the Labor Commissioner may prescribe, setting forth
the particulars in which the complaint is inaccurate or incomplete
and the facts upon which the defendant intends to rely.

(d) A pleading other than the complaint and answer of the
defendant or defendants shall not be required. Both shall be in
writing and shall conform to the form and the rules of practice and
procedure adopted by the Labor Commissioner.

(e) Evidence on matters not pleaded in the answer shall be
allowed only on terms and conditions the Labor Commissioner
shall impose. In all these cases, the claimant shall be entitled to a
continuance for purposes of review of the new evidence.

(f) If the defendant fails to appear or answer within the time
allowed under this chapter, a default shall not be taken against him
or her, but the Labor Commissioner shall hear the evidence offered
and shall issue an order, decision, or award in accordance with the
evidence. A defendant failing to appear or answer, or subsequently
contending to be aggrieved in a manner by want of notice of the
pendency of the proceedings, may apply to the Labor
Commissioner for relief in accordance with Section 473 of the
Code of Civil Procedure. The Labor Commissioner may afford
this relief. A right to relief, including the claim that the findings
or award of the Labor Commissioner or judgment entered thereon
are void upon their face, shall not accrue to the defendant in any
court unless prior application is made to the Labor Commissioner
in accordance with this chapter.

(g) A hearing conducted pursuant to this chapter is governed
by the division and by the rules of practice and procedure adopted
by the Labor Commissioner.

(h) (1) Whenever a claim is filed under this chapter against a
person operating or doing business under a fictitious business
name, as defined in Section 17900 of the Business and Professions
Code, which relates to the person’s business, the division shall
inquire at the time of the hearing whether the name of the person
is the legal name under which the business or person has been
licensed, registered, incorporated, or otherwise authorized to do
business.

(2) The division may amend an order, decision, or award to
conform to the legal name of the business or the person who is the
defendant to a wage claim, if it can be shown that proper service
was made on the defendant or his or her agent, unless a judgment
had been entered on the order, decision, or award pursuant to
subdivision (d) of Section 98.2. The Labor Commissioner may
apply to the clerk of the superior court to amend a judgment that
has been issued pursuant to a final order, decision, or award to
conform to the legal name of the defendant, if it can be shown that
proper service was made on the defendant or his or her agent.

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