BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 676 (Calderon) - Employment: discrimination: status as
unemployed.
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|Version: February 25, 2015 |Policy Vote: L. & I.R. 4 - 1, |
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|Urgency: No |Mandate: No |
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|Hearing Date: August 17, 2015 |Consultant: Robert Ingenito |
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This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 676 would prohibit an employer from
discriminating against prospective job applicants on the basis
of 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 in the range of $1
million to $3 million annually (special funds) 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
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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:
Prohibit an employer or an employment agency from
affirmatively asking an applicant 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.
Prohibit an employment agency, unless based on a bona
fide occupational qualification, from 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.
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.
Authorize an individual aggrieved by a violation of this
bill to file a complaint with the Labor Commissioner.
Establish civil penalties of $1,000 for a first
violation, $5,000 for a second violation, and $10,000 for
each subsequent violation.
Specify this bill does not create or authorize a private
right of action.
Define "employment status" to mean an individual's
present unemployment, regardless of length of time that the
individual has been unemployed
Related Legislation:
This bill is nearly identical to AB 2271 (Calderon) of
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2014, which was vetoed by the Governor. The veto message
indicated the following: "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."
Additionally, this bill is similar, but not identical,
to AB 1450 (Allen) from 2012, which was also 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 DIR may file a complaint under
Labor Codes 98.6 and 98.7. Investigating 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 that DIR 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
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prepare a written summary of findings.
The Labor Commissioner will review the summary of findings and
make a determination. If the 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.
This bill would specifically create new retaliation protections
for large categories of individuals, specifically the
unemployed. This cohort currently totals roughly 1.5 million
people. As noted above, the bill would create retaliation
protection for non-employees (job applicants) and employees who
may be discriminated against simply because of their status as
unemployed. The number of individuals who would actually avail
themselves of these protections is unknown. This is furthered
by the fact that DIR would now have enforcement authority for a
new group besides employers - 3rd party internet website
providers, whose number of related cases potentially generated
is also unknown. Taking all of this into account, DIR estimates
it may need roughly $1 to $3 million to cover staff costs to
handle the potential influx of claims. These numbers estimate
that even if only .001 percent of potential claimants file
claims, DIR could require over two dozen staff to process the
retaliation cases.
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