BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 676 (Calderon)
Version: February 25, 2015
Hearing Date: June 30, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Employment: discrimination: status as unemployed
DESCRIPTION
This bill, as of July 1, 2016, 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 in
an amount not to exceed $1,000 for the first violation, $5,000
for the second violation, and $10,000 for each subsequent
violation, enforceable by the Labor Commissioner.
BACKGROUND
Following the recent financial crisis that began in 2007,
millions of Americans are currently unemployed. California has
an unemployment rate of 6.5 percent, compared to about 5.4
percent 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:
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"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. 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.
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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. (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 17, 2015].)
Following increased media attention on 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
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." (National Employment Law Project, 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
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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.)
Similarly, this bill would prohibit discrimination by an
employer based on a prospective job applicant's employment
status. This bill is similar to AB 1450 (Allen, 2012), which
passed out of this Committee on a vote of 3-1 and was vetoed by
Governor Brown because he believed AB 1450 would lead to
unnecessary confusion. This bill is substantially similar to AB
2271 (Calderon, 2014), which was vetoed because Governor Brown
believed it could impede the state's efforts to connect
unemployed workers to prospective employers, and that the bill
would not provide the proper path to helping unemployed
Californians get back to work.
This bill was heard by the Senate Labor and Industrial Relations
Committee on June 24, 2015, and was approved by a vote of 4-1.
CHANGES TO EXISTING LAW
Existing law , the Fair Employment and Housing Act (FEHA),
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. (Gov. Code
Sec. 12940 et seq.)
This bill would prohibit, unless based on a bona fide
occupational qualification, an employer from either:
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
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
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for the position, as stated in the published notice for the
job.
This bill would prohibit, unless based on a bona fide
occupational qualification, an employment agency from doing any
of the following:
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;
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
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.
This bill would prohibit, 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.
This bill would define "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.
This bill would define "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 would not include any employment
counseling service or any job listing service.
This bill would define "employment status" to mean an
individual's present unemployment, regardless of the length of
time the individual has been unemployed.
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This bill would 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:
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) stating that only individuals who are current
employees of the employer will be considered for that job;
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) stating that only individuals who are current
employees of the employer will be considered for that job;
obtaining information regarding an individual's employment,
including recent relevant experience;
having knowledge of a person's employment status;
inquiring as to the reasons for an individual's employment
status;
refuse to offer employment to a person because of the reasons
underlying an individual's employment status; and
otherwise making employment decisions pertaining to that
individual.
This bill would prohibit an employer, an employment agency, or a
person operating an Internet Web site for posting jobs from
doing either of the following:
interfering with, restraining, or denying the exercise of, or
the attempt to exercise, any right provided under this bill;
and
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
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proceeding relating to any right under this bill.
This bill would authorize an individual aggrieved by a violation
to file a complaint with the Labor Commissioner, who would be
authorized to impose a civil penalty against any employer,
employment agency, or person operating an Internet Web site for
posting jobs that the commissioner finds to be in violation.
This bill would specify that an employer, employment agency, or
person operating an Internet Web site for posting jobs in
violation would be subject to a civil penalty of $1,000 for the
first violation, $5,000 for the second violation, and $10,000
for each subsequent violation.
This bill would provide that it does not create or authorize a
private right of action for a violation of its provisions.
This bill would become operative on July 1, 2016.
COMMENT
1. Stated need for the bill
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
[percent] lower than the short-term unemployed.
Also, employers are disinclined to hire even well-qualified
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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.
California Statistics: 40.5 [percent] 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 676 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 676 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 the minimum employment
qualifications for the position.
The bill will also prohibit an employer, employment agency, or
person who operates [an] 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.
2. Discrimination protection for unemployed job seekers
As discussed during the February 26, 2011, public hearing held
by the Equal Employment Opportunity Commission (EEOC), there is
an emerging practice across the country of excluding unemployed
people from applicant pools. (See Background.) This bill seeks
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to address this problem by prohibiting an employer, an
employment agency, or a person operating an Internet Web site
for posting jobs in this state from discriminating against a job
applicant on the basis of the applicant's employment status.
Under federal law, Title VII covers all public and private
employers with 15 or more employees, and prohibits employment
discrimination based on race, color, religion, sex, or national
origin, and applies to all aspects of the employment
relationship, including hiring, compensation, training,
benefits, working conditions, discipline, promotion, and
termination. California law provides more expansive
antidiscrimination protections for employees under the Fair
Employment and Housing Act (FEHA), which prohibits
discrimination 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. (Gov.
Code Sec. 12940 et seq.)
Instead of adding employment status to the list of
antidiscrimination protections provided in FEHA, this bill would
create separate discrimination prohibitions for employment
status. Although employees would not have the more expansive
level of protections and enforcement provisions that are
provided under FEHA, this bill would protect unemployed
individuals from discrimination while acknowledging an
employer's need to verify an individual's employment history as
well as the reasons for why he or she is unemployed. Further,
the modest provisions of this bill are appropriate because most
employers consider this type of discrimination to be unnecessary
and would continue to refrain from engaging in such
discrimination.
The California Labor Federation, AFL-CIO, in support, writes:
The lingering economic downturn presents unemployed workers
with a wide variety of unique challenges: our unemployment
rate hovers at over 6.7 [percent] - though the actual
percentage of workers unemployed and underemployed is much
larger - and those without jobs have found themselves idled
for historic lengths of time. From 3 workers fighting over
every available job to the shifting demands of today's
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economy, it has never been harder to find stable, reliable
work.
In addition, this most recent recession gave birth to a new
and particularly insidious form of discrimination. Across the
country, many employers, employment agencies, and online job
websites have begun to openly advertise warnings like "no
unemployed candidates considered at all" or "must be currently
employed." Creating a perverse catch-22, these corporations
require that you already have a job in order to get a job. . .
.
AB 676 will help end this discrimination, whether in
advertisements or through hiring policies. Employers will be
prohibited from inquiring about employment status before
assessing an applicant's qualifications, though an employer's
right to consider employment history will be explicitly
protected.
This common sense reform simply ends blanket policies that
exclude qualified workers, and thus the bill only affects
employers currently engaging in the practice. Meanwhile,
California's unemployed will face one less obstacle between
them and a successful return to the workforce.
This bill would limit an individual's remedies against an
employer, employment agency, or person operating a job posting
Web site to an administrative procedure in which the individual
would file a complaint with the Labor Commissioner. The Labor
Commissioner would then be authorized to impose civil penalties
based on the three-tier scheme created in this bill. Unlike AB
1450, which would have created a private right of action against
the violating party, this bill would specifically prohibit a
private right of action. Also unlike AB 1450, which would have
required an employer who contracts with a state agency to comply
with the bill and would have created a breach of contract and
grounds for contract termination for the employer's failure to
comply, this bill does not include contractors with the state or
provide for contract termination with the contractor who fails
to comply.
3. Governor Brown's vetoes of AB 1450 and AB 2271
This bill is similar to the enrolled version of AB 1450 (Allen,
2012). In vetoing AB 1450, Governor Brown stated:
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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.
This bill is also substantially similar to the enrolled version
of AB 2271 (Calderon, 2014). In vetoing AB 2271, Governor Brown
stated:
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.
Support : California Conference Board of the Amalgamated Transit
Union; California Conference of Machinists; California
Employment Lawyers Association; California Immigrant Policy
Center; California Labor Federation, AFL-CIO; California Nurses
Association; California Rural Legal Assistance Foundation;
California State Firefighters' Association; California Teamsters
Public Affairs Council; Engineers & Scientists of California;
Glendale City Employees Association; International Longshore &
Warehouse Union; Organization of SMUD Employees; National
Association of Social Workers, California Chapter; Professional
& Technical Engineers; San Diego County Court Employees
Association; San Luis Obispo County Employees Association;
Service Employees International Union; UNITE-HERE, AFL-CIO;
Utility Workers Union of America
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
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Prior Legislation :
AB 2271 (Calderon, 2014) See Background, Comments 2, 3.
AB 1450 (Allen, 2012) See Background, Comments 2, 3.
Prior Vote :
Senate Labor and Industrial Relations Committee (Ayes 4, Noes 1)
Assembly Floor (Ayes 51, Noes 27)
Assembly Appropriations Committee (Ayes 12, Noes 5)
Assembly Labor and Employment Committee (Ayes 5, Noes 1)
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