BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 676 Hearing Date: June 24,
2015
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|Author: |Calderon |
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|Version: |February 25, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Alma Perez-Schwab |
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Subject: Employment: discrimination: status as unemployed
KEY ISSUE
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
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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 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 against an applicant for employment based on his
or her current employment status, as specified.
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.
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
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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 current employees of the
employer will be considered.
b) Obtaining information regarding 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) 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,
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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. 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 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
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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
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 Long-Term
Unemployed: Administration has engaged with America's
leading businesses to develop best practices for hiring and
recruiting the long-term unemployed and ensure they receive
a fair shot during hiring. Over 80 of the nation's largest
businesses have signed on as well as many small- and
medium-sized businesses.
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Presidential Memorandum to Make Sure the Federal
Government Does the Same: The
President will also lead by example 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,
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. According to the author, in
December 2014 the unemployment rate was recorded at 7.1 % and
in January 2015 the duration of unemployment lasting 27 weeks
or longer was recorded to have reached 2,800 individuals. 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 :
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Similar efforts have been attempted in other states. The State
of New Jersey became the first to enact a law effective in
2011. (New Jersey Statutes, Title 34, Chapter 8 B Sections
1-2-C.348B-1) The NJ 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. 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." 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. They cite a study which found that long-term
unemployed workers with otherwise identical resumes were
called back for interviews at rates 45% lower than the
short-term unemployed.
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 this bill 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 :
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This bill has been double referred to this Committee and the
Senate Judiciary Committee. Should the bill be approved
today, it will be sent to Senate Judiciary for a hearing.
8. Prior and Related Legislation :
AB 2271 (Calderon) of 2014: Vetoed by the Governor
AB 2271 was nearly identical to this bill and was vetoed by
the Governor. Below is the Governor's veto message to AB 2271.
"This bill would prohibit an employer from discriminating
against job applicants based on the applicant's status as
unemployed. While I support the intent of this bill, it
could impede the state's efforts to connect unemployed
workers to prospective employers as currently drafted. The
problems facing our state's long term unemployed are great.
There is no doubt that those Californians want to get back
to work and I want to help them get there - unfortunately
this bill does not provide the proper path to address this
problem."
AB 1450 (Allen) of 2012: Vetoed by the Governor
This bill is similar, but not identical, to AB 1450 from 2012.
This bill differs 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 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 specified.
SUPPORT
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Employment Lawyers Association
California Labor Federation, AFL-CIO
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California Nurses Association
California State Firefighters' Association
California Teamsters Public Affairs Council
Engineers & Scientists of California
Glendale City Employees Association
International Longshore & Warehouse Union
National Association of Social Workers, CA Chapter
Organization of SMUD Employees
Professional & Technical Engineers
San Bernardino Public Employees Association
San Diego County Court Employees Association
Service Employees International Union
San Luis Obispo County Employees Association
UNITE-HERE, AFL-CIO
Utility Workers Union of America
OPPOSITION
None received
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