BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 2271 (Calderon) - Employment: Discrimination: Status as
Unemployed
Amended: March 28, 2014 Policy Vote: L&IR 4-1 Judiciary
5-1
Urgency: No Mandate: No
Hearing Date: August 4, 2014
Consultant: Robert Ingenito
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 2271 would prohibit an employer from
discriminating against prospective job applicants on the basis
of the applicant's employment status. This bill would provide
that an employer, employment agency, or person operating an
Internet job posting Web site who discriminates against
unemployed job applicants would be subject to a civil penalty,
enforceable by the Labor Commissioner.
Fiscal Impact: The Department of Industrial Relations (DIR)
would incur increased administrative costs of $3.4 million in
the first year and $3.1 million ongoing as a result of the bill,
to process, review, and investigate complaints.
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: This bill would do all of the following:
1)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, as specified, including that only individuals
AB 2271 (Calderon)
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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.
1)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.
2)Authorize an individual aggrieved by a violation of this bill
to file a complaint with the Labor Commissioner.
3)Establish civil penalties of $1,000 for a first violation,
$5,000 for a second violation, and $10,000 for each subsequent
violation.
Related Legislation: This bill is similar, but not identical, to
AB 1450 (Allen) from 2012, which was vetoed by the Governor. AB
1450 would have, among other things, prohibited an employer from
publishing an advertisement or announcement that indicated that
an individual's current employment is a requirement for a job.
This bill differs from AB 1450 in that it simply 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.
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.
AB 2271 (Calderon)
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(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
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.