BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 2271
Author: Ian Calderon (D)
Amended: 8/18/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 6/17/14
AYES: Jackson, Corbett, Lara, Leno, Monning
NOES: Vidak
NO VOTE RECORDED: Anderson
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 4-1, 6/25/14
AYES: Hueso, Leno, Padilla, Mitchell
NOES: Wyland
SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14
AYES: De León, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters, Gaines
ASSEMBLY FLOOR : 51-23, 5/28/14 - See last page for vote
SUBJECT : Employment: discrimination: status as unemployed
SOURCE : Author
DIGEST : This bill, on or after July 1, 2015, prohibits an
employer from discriminating against prospective job applicants
on the basis of the applicants employment status. This bill
provides that an employer, employment agency, or person
operating an Internet job posting Web site who discriminates
against unemployed job applicants is subject to civil penalties
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enforceable by the Labor Commissioner.
ANALYSIS : Existing law, the Fair Employment and Housing Act,
prohibits, as a matter of public policy, discrimination and
harassment in employment on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status.
This bill:
1. Prohibits, unless based on a bona fide occupational
qualification, an employer from either:
A. Publishing 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; or
B. Affirmatively asking 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.
2. Prohibits, unless based on a bona fide occupational
qualification, an employment agency from doing any of the
following:
A. Publishing 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;
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; and
C Affirmatively asking an applicant for employment to
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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.
3. Prohibits, unless based on a bona fide occupational
qualification, a person who operates an Internet Web site for
posting jobs in this state from publishing 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.
4. Defines "employer" to mean the state or any political or
civil subdivision of the state and any person 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.
5. Defines "employment agency" to mean any person who, for a fee
or other valuable consideration to be paid, directly or
indirectly by a jobseeker, performs, offers to perform, or
represents it can or will perform employment services, as
specified, but does not include any employment counseling
service or any job listing service.
6. Defines "employment status" to mean an individual's present
unemployment, regardless of the length of time the individual
has been unemployed.
7. Does not preclude 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. Setting forth qualifications for any job or
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; and (3)
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stating that only individuals who are current employees
of the employer will be considered for that 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;
E. Refuse to offer employment to a person because of the
reasons underlying an individual's employment status;
and
F. Otherwise making employment decisions pertaining to
that individual.
8. Prohibits an employer, an employment agency, or a person
operating an Internet Web site for posting jobs from doing
either of the following:
A. Interfering with, restraining, or denying the
exercise of, or the attempt to exercise, any right
provided under this bill; and
B Discriminating against any individual because the
individual (1) opposed any practice made unlawful; (2)
has instituted, or caused to be instituted, any
proceeding; (3) has provided, or is about to provide,
any information in connection with any inquiry or
proceeding relating to any right provided; or (4) has
testified, or is about to testify, in any inquiry or
proceeding relating to any right under this bill.
9. Authorizes an individual aggrieved by a violation to file a
complaint with the Labor Commissioner, who is authorized to
impose a civil penalty against any employer, employment
agency, or person operating an Internet Web site for posting
jobs that the Labor Commissioner finds to be in violation.
10.Specifies that an employer, employment agency, or person
operating an Internet Web site for posting jobs in violation
will be subject to a civil penalty of $1,000 for the first
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violation, $5,000 for the second violation, and $10,000 for
each subsequent violation.
11.Prohibits a private right of action for a violation.
12.Takes effect on July 1, 2015.
Background
Following the recent financial crisis that began in 2007,
millions of Americans are currently unemployed. California has
an unemployment rate of 7.8%, compared to about 6.3% nationally.
Recently, reports are surfacing that many employers are
requiring, as a part of the job description, that the applicant
be currently employed.
On February 16, 2011, the Equal Employment Opportunity
Commission (EEOC) held a public hearing to examine the impact of
employers considering only those currently employed for job
vacancies. According to the EEOC Press Statement on the
hearing:
"Throughout its 45 year history, the EEOC has identified and
remedied discrimination in hiring and remains committed to
ensuring job applicants are treated fairly," said EEOC Chair
Jacqueline A. Berrien. "Today's meeting gave the Commission an
important opportunity to learn about the emerging practice of
excluding unemployed persons from applicant pools."
According to Helen Norton, Associate Professor at the University
of Colorado School of Law, employers and staffing agencies have
publicly advertised jobs in fields ranging from electronic
engineers to restaurant and grocery managers to mortgage
underwriters with the explicit restriction that only currently
employed candidates will be considered. "Some employers may use
current employment as a signal of quality job performance,"
Norton testified. "But such a correlation is decidedly weak. A
blanket reliance on current employment serves as a poor proxy
for successful job performance."
"The use of an individual's current or recent unemployment
status as a hiring selection device is a troubling development
in the labor market," said Fatima Goss Graves, Vice President
for Education and Employment of the National Women's Law Center.
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She noted that this practice "may well act as a negative
counterweight" to government efforts to get people back to work.
Women, particularly older women and those in non-traditional
occupations, are disproportionately affected by this
restriction, testified Goss Graves.
Denying jobs to the already-unemployed can also have a
disproportionate effect on certain racial and ethnic minority
community members, Algernon Austin, Director of the Program on
Race, Ethnicity, and the Economy of the Economic Policy
Institute, explained. Unemployment rates for African-Americans,
Hispanics and Native Americans are higher than those of whites.
When comparing college-educated workers, the unemployment rate
for Asians is also higher. Thus, restricting applications to
the currently employed could place a heavier burden on people of
color, he concluded.
The use of employment status to screen job applicants could also
seriously impact people with disabilities, according to Joyce
Bender, an expert in the employment of people with disabilities.
"Given my experience, I can say without a doubt that the
practice of excluding persons who are currently unemployed from
applicant pools is real and can have a negative impact on
persons with disabilities," Bender told the Commission.
Dr. William Spriggs, Assistant Secretary of Labor for Policy,
offered data supporting this testimony. Spriggs presented
current national employment statistics showing that
African-Americans and Hispanics are overrepresented among the
unemployed. He also stated that excluding the unemployed would
be more likely to limit opportunities for older applicants as
well as persons with disabilities. (Equal Empl. Opportunity
Com., Press Release, Out of Work? Out of Luck: EEOC Examines
Employers' Treatment of Unemployed Job Applicants at Hearing
(Feb. 16, 2011)
[as of
June 8, 2014].)
Following increased media attention to discrimination against
unemployed workers in hiring practices, on July 12, 2011, the
National Employment Law Project (NELP) released a study which
found that, in one month, there were more than 125 online job
postings that required candidates to be "currently employed."
According to the study, "[s]ignificantly, the fact that NELP's
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relatively limited research yielded such a broad cross-section
of exclusionary ads - with postings for jobs throughout the
United States, by small, medium and large employers, for white
collar, blue collar, and service sector jobs, at virtually every
skill level - suggests that the practice of excluding unemployed
job seekers could be far more extensive than depicted in this
limited sample." (NELP, Briefing Paper, Hiring Discrimination
Against the Unemployed (July 12, 2011) p. 2.)
Recent legislation aimed at protecting unemployed individuals
seeking work was enacted in New Jersey, Oregon, and the District
of Columbia, which now prohibit employers from specifying in
print or Internet job advertisements that unemployed persons
will not be considered for hire. New York City amended its
Human Rights Law, effective June 11, 2013, to define a job
applicant's unemployed status as a protected class along with
age, race, creed, color, national origin, gender, disability,
marital status, partnership status, sexual orientation, and
alienage/citizenship status and provides plaintiffs with the
right to pursue private civil claims.
However, on the federal level, the Fair Employment Act of 2011,
the Fair Employment Opportunity Act of 2011, and the American
Jobs Act of 2011, were introduced and would have made it illegal
for employers to discriminate based on employment status, but
that legislation was not enacted. (See H.R. No. 1113, 112th
Cong., 1st Sess. (2011); H.R. 2501, 112th Cong., 1st Sess.
(2011); S. 1471, 112th Cong., 1st Sess. (2011)); S. 1549, 112th
Cong., 1st Sess., Part III, Subtitle D (2011); H.R. 12, 112th
Cong., 1st Sess. (2011), Sec D.)
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee, the Department
of Industrial Relations will 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.
SUPPORT : (Verified 8/12/14)
California Employment Lawyers Association
California Labor Federation, AFL-CIO
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California School Employees Association, AFL-CIO
Consumer Attorneys of California
ARGUMENTS IN SUPPORT : The author writes:
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."
The National Employment Law Project [(NELP)] has found
that the "falling unemployment rate and improving economic
conditions are not translating into adequate job
opportunities for millions of long-term unemployed job
seekers." A study found that long-term unemployed workers
with otherwise identical resumes were called back for
interviews at rates 45% lower than the short-term
unemployed.
Also, 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% of those unemployed for more than 6
months will ever regain steady full-time work.
California Statistics: 40.5% of the unemployed in CA have
been out of work for 27 weeks or longer. 214,800 people
in California lost their unemployment benefits on December
28, 2013 when the federal unemployment benefits lapsed and
836,100 will lose access to benefits through 2014.
AB 2271 will make sure that the unemployed are not
unfairly discriminated against and provide opportunities
for unemployed Californians to at least get their foot in
the door and prove to employers they are qualified and a
good candidate for the job.
AB 2271 would prevent employers, including 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
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the minimum employment qualifications for the position.
ASSEMBLY FLOOR : 51-23, 5/28/14
AYES: Alejo, Ammiano, Bloom, Bocanegra, Bonilla, Bonta,
Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Dababneh, Daly, Dickinson, Eggman, Fong, Garcia,
Gatto, Gomez, Gonzalez, Gordon, Gray, Hall, Roger Hernández,
Holden, Jones-Sawyer, Levine, Lowenthal, Medina, Mullin,
Muratsuchi, Pan, Perea, John A. Pérez, V. Manuel Pérez, Quirk,
Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner,
Stone, Ting, Weber, Wieckowski, Williams, Yamada, Atkins
NOES: Achadjian, Allen, Bigelow, Chávez, Conway, Dahle,
Donnelly, Beth Gaines, Gorell, Grove, Hagman, Harkey, Jones,
Linder, Maienschein, Mansoor, Melendez, Nestande, Olsen,
Patterson, Wagner, Waldron, Wilk
NO VOTE RECORDED: Cooley, Fox, Frazier, Logue, Nazarian,
Vacancy
AL:d 8/15/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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