BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Senator Ben Hueso, Chair
Date of Hearing: June 25, 2014 2013-2014 Regular
Session
Consultant: Alma Perez-Schwab Fiscal:Yes
Urgency: No
Bill No: AB 2271
Author: Ian Calderon
As Introduced/Amended: March 28, 2014
SUBJECT
Employment: discrimination: status as unemployed
KEY ISSUES
Should legislation be enacted making it unlawful for an employer
to discriminate against an unemployed individual who applies for
employment?
Should it be illegal for an employer, employment agency, or
person operating an Internet job posting website to advertise or
announce, in job postings, any provisions stating or indicating
that an individual's current employment is a requirement for the
job?
ANALYSIS
Existing federal and state law contains provisions that define
unlawful discrimination and lawful employment practices by
employers and employment agencies to protect both prospective
and current employees against employment discrimination.
The existing Fair Employment and Housing Act (FEHA) prohibits
harassment and discrimination in employment because of, among
other things, race, color, religion, sex, sexual orientation,
marital status, mental and physical disability, age and/or
retaliation for protesting illegal discrimination related to one
of these categories or for reporting patient abuse in tax
supported institutions. (Government Code §12940, 12945, 12945.2)
Existing law further regulates anyone who collects, assembles,
evaluates, compiles, reports, transmits, transfers, communicates
information on a consumer's character, general reputation,
personnel characteristics, or mode of living, for employment
purposes, which are matters of public record. (Civic Code
§1786.53)
Existing law prohibits employers from discriminating,
discharging or refusing to hire an employee based on an
employee's lawful conduct during nonworking hours away from the
employer's premises. (Labor Code §96 & 98.6)
This Bill would enact various provisions of law related to
discrimination based on an individual's current employment
status.
Specifically, this bill would:
1) Define "employment status" to mean an individual's
present unemployment, regardless of length of time that the
individual has been unemployed.
2) Prohibit 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 job requirement.
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) Prohibit 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 job requirement.
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b) Limiting, segregating, or classifying an individual
in any manner that may limit his/her access to
information about jobs or referrals for consideration of
jobs because of the individual's employment status.
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) Prohibit 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) Provide 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, including:
i) Holding professional or occupational license,
certificate, permit or credential;
ii) Requiring a minimum level of education or
training or experience;
iii) Stating that only individuals who are current
employees of the employer will be considered for the
job.
b) Obtaining information regarding an individual's
employment, including recent relevant experience.
c) Having knowledge of a person's employment status.
d) Inquiring as to the reasons for an individual's
employment status.
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e) Refusing to offer employment to a person because of
the reasons underlying an individual's employment status.
f) Otherwise making employment decisions pertaining to
that individual.
6) Prohibit 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.
7) Authorize an individual aggrieved by a violation of
these provisions to file a complaint with the Labor
Commissioner who may impose a civil penalty against the
employer of $1,000 for a first violation, $5,000 for a
second, and $10,000 for each subsequent violation.
COMMENTS
1. "Unemployed Need Not Apply": Background on the Issue
The nation has suffered from a severe unemployment crisis that
has affected nearly all sectors of the economy. According to
the National Employment Law Project, around 9.8 million
workers were unemployed in May 2014, and 3.4 million, or 34.6
percent, of those workers were searching for work for six
months or more. Although the ranks of the long-term unemployed
have shrunk some in recent months, there are still roughly
two-and-a-half times more long-term unemployed today than when
the recession began, and the decline in long-term unemployment
has been far slower than the overall decline in unemployment.
In the summer of 2010, news accounts began to emerge
throughout the country suggesting that some employers were
establishing blanket exclusions of unemployed workers from job
consideration using terms like "must be currently employed" or
"require current (or very recent) tenure," as part of the
qualifications for employment. One of the first stories
reported, in May 2010, involved accounts by media in Atlanta
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reporting that Sony Ericsson's newly relocated headquarters
had posted a job announcement for a marketing position 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. NELP's research of
job postings identified more than 150 ads that included
exclusions based on current employment status. (Briefing
Paper: Hiring Discrimination against the Unemployed, National
Employment Law Project, July 12, 2011) Most of the ads
specifically stated that applicants "must be currently
employed."
2. White House Report: Addressing the Negative Cycle of Long-Term
Unemployment
In January 2014, the White House released a report,
"Addressing the Negative Cycle of Long-Term Unemployment,"
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.
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
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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.
In response to these findings, the Administration announced
the following initiatives:
New Best Practices for Hiring and Recruiting the
Long-Term Unemployed: As part of an
ongoing effort, 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.
Fund programs that help find employment: The Department
of Labor is seeking to fund
new programs that build on models that have shown success
in helping the long-term unemployed find employment through
innovative partnerships and proven strategies, including
job-training, subsidized employment, and sector-based
strategies.
3. Need for this bill?
Existing law authorizes employers to conduct an investigation,
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such as a background check, into an individual's character for
employment purposes, as specified. Existing law also prohibits
harassment and discrimination in employment because of race,
color, religion, sex and sexual orientation, among others.
However, nothing specifically addresses the issue of
discriminating against the unemployed.
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" and have argued that it is not only improper
towards those who have suffered the misfortune of a layoff,
but also exacerbates the downturn by keeping qualified
applicants out of the job market. This bill attempts to ban
such a practice under state law by prohibiting employers from
discriminating against prospective job applicants on the basis
of his/her employment status.
4. Similar Efforts in Other States :
Similar efforts have been attempted in other states. The State
of New Jersey became the first such state to enact a law,
effective June 1, 2011. (New Jersey Statutes, Title 34,
Chapter 8 B Sections 1-2-C.348B-1 to 34:8B-2.) The New Jersey
statute prohibits an employer from publishing a job posting
that states any of the following: (1) current employment is a
job qualification; (2) currently unemployed candidates will
not be considered; or (3) only currently employed job
applicants will be considered. According to the National
Conference of State Legislatures, in 2012 both Oregon and the
District of Columbia passed a law prohibiting discrimination
against the unemployed. In 2013, nine other states had
introduced hiring discrimination bills.
5. Proponent Arguments :
According to the author, research shows that the long-term
unemployed are frequently overlooked and sometimes excluded
from job opportunities. They cite a study which found that
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long-term unemployed workers with otherwise identical resumes
were called back for interviews at rates 45% lower than the
short-term unemployed. Proponents argue that the long-term
unemployed are some of California's most in-need individuals
whose harm is compounded when their attempts to re-enter the
work force are thwarted by this type of discrimination.
Proponents support the measure which seeks to prevent
employers 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. They believe that will level the playing
field for the long-term unemployed and allow a person's
credentials and qualifications to speak first, rather than
their status as an unemployed individual.
6. Opponent Arguments :
None received.
7. Double Referral :
This bill has been double referred and was previously heard
and passed by the Senate Judiciary Committee.
8. Prior and Related Legislation :
AB 1450 (Allen) of 2012: Vetoed by the Governor
This bill is similar, but not identical, to AB 1450 (Allen)
from 2012. AB 1450 would have, among other things, prohibited
an employer from publishing in print, on the internet, or any
other medium an advertisement or announcement that stated or
indicated that an individual's current employment is a
requirement for a job. This bill differs from AB 1450 in that
it merely prohibits an employer from asking an applicant to
disclose information concerning his/her current employment
status until the employer has determined that the applicant
meets the minimum employment qualifications for the position.
AB 1450 was vetoed by Governor Brown, who stated the following
in his veto message:
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"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."
AB 218(Dickinson) of 2013: Chaptered
AB 218 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. This bill (AB2271) is more consistent with this
approach.
SUPPORT
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California School Employees Association
Consumer Attorneys of California
OPPOSITION
None received
Hearing Date: June 25, 2014 AB 2271
Consultant: Alma Perez-Schwab Page 9
Senate Committee on Labor and Industrial Relations