BILL ANALYSIS Ó
AB 2271
Page A
Date of Hearing: April 23, 2014
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 2271 (Ian Calderon) - As Amended: March 28, 2014
SUBJECT : Employment discrimination: status as unemployed.
SUMMARY : Enacts various provisions of law related to
discrimination based on an individual's employment status
(present unemployment). Specifically, this bill :
1)Defines "employment status" to mean an individual's present
unemployment, regardless of length of time that the individual
has been unemployed.
2)Prohibits an employer, unless based on a bona fide
occupational qualification, from doing either of the
following:
a) Publishing 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.
b) Affirmatively asking an applicant for employment to
disclose information concerning the applicant's current
employment status until the employer has determined that
the applicant meets the minimum employment qualifications
for the position.
3)Prohibits an employment agency, unless based on a bona fide
occupational qualification, from doing any of the following:
a) Publishing 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.
b) Limiting, segregating, or classifying 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.
AB 2271
Page B
c) Affirmatively asking an applicant for employment to
disclose information concerning the applicant's current
employment status until the employer has determined that
the applicant meets the minimum employment qualifications
for the position.
4)Prohibits a person who operates a job posting website, unless
based on a bona fide occupational qualification, from
publishing 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.
5)Provides that this bill does not prohibit an employer,
employment agency, or person operating a job posting website
from doing the following:
a) Publishing an advertisement or announcement for any job
that contains any provision setting forth qualifications
for a job, as specified, including that only individuals
who are current employees of the employer will be
considered for the job.
b) Setting forth qualifications for any job, as specified.
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.
6)Prohibits an employer, employment agency, or person operating
a job posting website from interfering with, restraining, or
denying the exercise of, or the attempt to exercise, any
rights provided under this bill, or discriminating against an
individual because the individual has engaged in specified
activities.
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7)Authorizes an individual aggrieved by a violation of this bill
to file a complaint with the Labor Commissioner.
8)Establishes civil penalties of $1,000 for a first violation,
$5,000 for a second violation, and $10,000 for each subsequent
violation.
FISCAL EFFECT : Unknown
COMMENTS : Over the last several years, significant media
attention has focused on reports that some employers are
refusing to consider applicants for employment unless those
individuals are currently employed in other jobs (thereby
excluding from consideration those applicants who are currently
unemployed). Many advocates and policymakers have referred to
this phenomenon as "discrimination against the unemployed."
"Unemployed Need Not Apply"
In the summer of 2010, news accounts began to emerge suggesting
that some employers were establishing a blanket exclusion of
unemployed workers from job consideration. One of the first
stories involved a report by media in Atlanta that Sony
Ericsson's newly relocated headquarters had posted a job
announcement that explicitly stated, "No Unemployed Candidates
Considered At All."
Subsequently, in early 2011 the National Employment Law Project
(NELP) conducted a four-week review of the nation's most
prominent online job listing websites. The online research
sought information on both employers and staffing firms that
were specifically identified by name from across the United
States. NELP's research of job postings identified more than
150 ads that included exclusions based on current employment
status<1>. Most of the ads specifically stated that applicants
"must be currently employed."
In June 2011, a national survey conducted by Hart Research
Associates indicated that 80 percent of respondents described
the refusal to consider unemployed job applicants as "very
unfair." Nearly two-thirds of respondents said they favored
---------------------------
<1> "Briefing Paper: Hiring Discrimination Against the
Unemployed." National Employment Law Project (July 12, 2011).
AB 2271
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federal legislation to make "it illegal for companies to refuse
to hire or consider a qualified job applicant solely because the
person is currently unemployed<2>."
Do Such Policies Exacerbate The Unemployment Crisis?
Advocates have argued that employer policies that preclude
consideration of the unemployed in hiring are not only
fundamentally unfair, they also reflect insensitivity to today's
severe jobs deficit:
"By any measure, the nation is suffering from a severe
unemployment crisis, cutting across nearly all sectors of
the economy. High unemployment has persisted for three
years, with the national unemployment rate hovering around
9 percent for more than two years and edging up to 9.2
percent in June 2011. Millions have been out of work for
significantly longer than in any other recession on record:
nearly 6.3 million unemployed workers have been out of work
for six months or longer, and the average spell of
unemployment has risen, reaching nearly 40 weeks, or more
than nine months, as of June 2011.
Our ongoing unemployment crisis is not the result of
unwillingness to work on the part of the unemployed, or a
mismatch between available jobs and skills of job seekers.
At the core of the crisis is the fact that there simply are
not enough jobs. Our current jobs deficit exceeds 11
million jobs, taking into account the net number of jobs
lost since December 2007 and the additional new jobs that
were needed simply to keep up with population growth. As
one small measure of the intense competition for jobs
resulting from this deficit, the ratio of unemployed
workers (that is, individuals who are without jobs and are
actively looking for work) to the number of new job
openings (net) is alarmingly high. The most recent figures
available show that during the month of May 2011, there
were more than nearly five unemployed workers for every one
job opening-the exact ratio stood at 4.7-to-13. May 2011
marked the 29th consecutive month during which there was
only one opening for at least every four unemployed
workers.
-------------------------
<2> Id. at 3.
AB 2271
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By comparison, at the start of the Great Recession in
December 2007, there were less than two unemployed workers
for every opening. Even during the prior 2001 recession and
its aftermath, the ratio of unemployed to job openings
peaked at 2.8-to-1-a level surpassed less than a year into
the current downturn.
Competition for jobs is stiff in every part of the country,
with unemployed workers outnumbering available job openings
by nearly four-to-one or more in every region. In the West,
the demand for scarce jobs is even greater, with five or
more unemployed workers for every opening as of May; the
South is not far behind. The ratio of unemployed workers to
job openings has roughly doubled in every region and at the
national level since the start of the Great Recession, and
in the South and West, it has roughly tripled.
Taken together, the lack of available job openings and the
denial of employment opportunities that do exist create
stark obstacles for more than 14 million unemployed who
simply want to get back to work<3>."
Recent White House Report on the Long-Term Unemployment Crisis
In January 2014, the White House released a report<4> which
explored the challenge of long-term unemployment, something it
called "the worst legacy of the Great Recession."
Among other things, the report found that, although the long-
and short-term unemployed have similar credentials overall,
research suggests that the long-term unemployed face significant
disadvantages in the labor market simply by virtue of their
status as being long-term unemployed.
Specifically, the report made the following findings:
The long-term unemployed are about half as likely as the
short-term unemployed to get a callback. Interview
"callback" rate for otherwise identical resumes falls
sharply as the length of unemployment rises, with callbacks
45 percent lower for those unemployed for eight months
compared to those unemployed for just one month.
--------------------------
<3> Id. at 4.
<4> "Addressing the Negative Cycle of Long-Term Unemployment."
Executive Office of the President (January 2014).
AB 2271
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To land an interview, the long-term unemployed must
apply to 3.5 times as many jobs as the short-term
unemployed. Applicants unemployed for seven months need to
send an average of 35 resumes to online job postings to
receive just one interview, compared to just 10 resumes per
interview for those unemployed for only one month.
Employers may be screening out applicants based on
duration of unemployment, and missing the more qualified
applicants. Long-term unemployed workers with relevant work
experience are less likely to be invited for an interview
than recently unemployed job applicants with no relevant
experience.
Therefore, the Administration announced the following
initiatives:
"New Best Practices for Hiring and Recruiting the
Long-Term Unemployed. As part of an ongoing effort that
began several months ago, the Administration has engaged
with America's leading businesses to develop best practices
for hiring and recruiting the long-term unemployed to
ensure that these candidates receive a fair shot during the
hiring process. Over 80 of the nation's largest businesses
have signed on, including 20 members of the Fortune 50 and
over 45 members of the Fortune 200, as well as over 200
small- and medium-sized businesses.
Presidential Memorandum to Make Sure the Federal
Government Does the Same. The President will also lead by
example and use his executive authority to sign a
Presidential Memorandum to make sure that individuals who
are unemployed or have faced financial difficulties through
no fault of their own receive fair treatment and
consideration for employment by federal agencies."<5>
ARGUMENTS IN SUPPORT :
According to the author, research shows that the long-term
unemployed are frequently overlooked and sometimes excluded from
job opportunities. Employers and employment agencies have
posted job vacancy notifications with language such as "No
unemployed candidates considered at all" or "Only currently
employed candidates will be considered."
---------------------------
<5> Id.
AB 2271
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Employers are disinclined to hire even well-qualified job
applicants who have been out of work for six months or longer.
Three Princeton economists found that only 11 percent of those
unemployed for more than 6 months will ever regain steady
full-time work.
Therefore, the author states that this bill would seek to
prevent employers, including the state and local agencies, or
employment agencies from affirmatively asking an applicant for
employment to disclose information concerning employment status
until the employer or employment agency has determined that the
applicant meets the minimum employment qualifications for the
position.
The bill will prohibit an employer, employment agency, or person
who operates on Internet Web Site for posting jobs in this state
from publishing a job announcement or advertisement containing a
provision stating or indicating that an individual's current
employment is a requirement for the job, unless based on a bona
fide occupational qualification.
PRIOR RELATED LEGISLATION :
This bill is similar, but not identical, to AB 1450 (Allen) from
2012. As introduced, AB 1450 would have, among other things,
prohibited an employer with 15 or more employees from refusing
to consider an individual or offer employment because of the
individual's employment status.
This bill differs from AB 1450 in that merely prohibits an
employer from affirmatively asking an applicant for employment
to disclose information concerning the applicant's current
employment status until the employer has determined that the
applicant meets the minimum employment qualifications for the
position. This approach is more consistent with recent efforts
on "ban the box" legislation related to employment applicants
with criminal histories. For example, AB 218 (Dickinson)
enacted last year prohibits a state or local agency from asking
an applicant for employment to disclose information concerning
the conviction history of the applicant, including any inquiry
about conviction history on any employment application, until
the agency has determined the applicant meets the minimum
employment qualifications, as stated in any notice issued for
the position.
AB 2271
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AB 1450 was subsequently amended to delete provisions of the
bill related to hiring decisions and offers of employment and
instead merely prohibited job advertisements or announcements
that stated or indicated that an individual's current employment
is a requirement for a job. AB 1450 was vetoed by Governor
Brown, who stated the following in his veto message:
"This measure seeks to prevent discrimination against the
unemployed based on their job status by prohibiting
employers from stating in employment ads that applicants
must be employed. Unfortunately, as this measure went
through the legislative process it was changed in a way
that could lead to unnecessary confusion."
REGISTERED SUPPORT / OPPOSITION :
Support
California Employment Lawyers Association
California Labor Federation, AFL-CIO
Consumer Attorneys of California
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091