BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 883


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          Date of Hearing:  April 8, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger Hernández, Chair


          AB 883  
          (Low) - As Amended April 6, 2015


          SUBJECT:  Employment:  public employee status


          SUMMARY:  Enacts various provisions related to discrimination  
          based on current or former public employee status.   
          Specifically, this bill:  


          1)Prohibits an employer, including a public employer, from doing  
            the following:


             a)   Publishing an advertisement or announcement for any job  
               that includes a provision stating or indicating directly or  
               indirectly that the applicant for employment must not be a  
               current or former public employee.


             b)   Communicating or disclosing that an applicant's status  
               as a current or former public employee disqualifies an  
               individual from eligibility for employment.


             c)   Making an employment decision based on an applicant's  
               current or former status as a public employee.









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          2)Prohibits a person who operates specified job posting Internet  
            Web sites from including in advertisements or announcements a  
            provision stating or indicating directly or indirectly that  
            the applicant for employment must not be a current or former  
            employee.


          3)Provides that this bill shall not be construed to prohibit an  
            employer or a person who operates an Internet Web site for  
            posting jobs from:





             a)   Publishing in print, on an Internet Web site, or in any  
               other medium, an advertisement or announcement for any job  
               that contains any provision setting forth qualifications  
               for a job, including:



               i)     Holding a current and valid professional or  
                 occupational license, certificate, registration, permit,  
                 or other credential.



               ii)    Requiring a minimum level of education or training  
                 or professional, occupational, or field experience.



               iii)   Stating that only individuals who are current  
                 employees of the employer will be considered for that  
                 job.










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             b)   Setting forth qualifications for any job, including:



               i)     Holding a current and valid professional or  
                 occupational license, certificate, registration, permit,  
                 or other credential.



               ii)    Requiring a minimum level of education or training  
                 or professional, occupational, or field experience.



               iii)   Stating that only individuals who are current  
                 employees of the employer will be considered for that  
                 job.



             c)   Obtaining information regarding an individual's current  
               or former status as a public employee, including recent  
               relevant experience.



             d)   Having knowledge of a person's current or former status  
               as a public employee.



             e)   Otherwise making employment decisions pertaining to that  
               individual.
          4)Provides that if an employer violates this bill, a job  
            applicant or prospective applicant may bring an action to  
            recover actual damages or $200, whichever is greater, plus  
            costs and reasonable attorney's fees.








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          5)Provides that an intentional violation shall entitle the  
            applicant or prospective applicant to treble actual damages or  
            $500, whichever is greater, plus costs and reasonable  
            attorney's fees.  In addition, an intentional violation is an  
            infraction punishable by a fine not to exceed $500.


          EXISTING LAW regulates the terms and conditions of employment  
          and, in particular, contracts and applications for employment.  
          Existing law prohibits private employers from requiring an  
          applicant for employment to take a polygraph test as a condition  
          of employment or continued employment. Existing law generally  
          prohibits public and private employers from requiring an  
          applicant to disclose an arrest or detention that did not result  
          in a conviction, subject to various exceptions.


          FISCAL EFFECT:  Unknown


          COMMENTS:  Existing federal and state law contain provisions  
          that define unlawful discrimination and unlawful employment  
          practices by employers and employment agencies.  These  
          provisions exist to protect both prospective and current  
          employees against employment discrimination. 


          The Fair Employment and Housing Act (FEHA), prohibits harassment  
          and discrimination in employment because of, among other things,  
          race, color, religion, sex, gender, sexual orientation, marital  
          status, mental and physical disability, age and/or retaliation  
          for protesting illegal discrimination related to one of these  
          categories (Government Code §12940, 12945). In addition, current  
          law generally prohibits public and private employers from  
          requiring an applicant to disclose an arrest or detention that  
          did not result in a conviction (Labor Code § 432.7). 









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          In addition, AB 218 (Dickinson) which was signed into law in  
          2013 provided additional protections for job applicants by  
          prohibiting a state or local agency from asking an applicant for  
          employment to disclose information concerning their conviction  
          history, until the agency has determined applicant meets the  
          minimum employment qualifications for the position. 


          These statutes seek to ensure a workplace free from  
          discrimination as well as establish clear prohibitions of  
          employment practices that would deprive or tend to deprive any  
          individual of employment opportunities, limit such employment  
          opportunities or otherwise adversely affect a person's status as  
          an employee or as an applicant for employment. 


          ARGUMENTS IN SUPPORT


          This bill is sponsored by the California Professional  
          Firefighters, who argue that a new trend in employment practices  
          has surfaced - one that requires an applicant for employment to  
          not be a participant of a governmental retirement plan.   
          Consequently, qualified job applicants are now being  
          discriminated against and penalized when their work history  
          shows that they currently hold or previously held a position in  
          which they were classified as a public employee since only  
          public employees are eligible to be members of a governmental  
          retirement plan.  


          The sponsor argues that punishing a potential applicant due to  
          his or her previous experience as a public employee is not only  
          divisive; it is a true disservice to the employer that has  
          posted the job advertisement.  By discriminating against  
          potential applicants in this way, an employer may be excluding  
          an entire group of the most qualified applicants that could be  
          considered for the position.  








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          For example, firefighters are highly-skilled and highly-trained  
          first responders.  CPF states that its members are also public  
          employees.  Many of the skills that firefighters acquire in  
          their profession come from firsthand experience on the front  
          lines - responding to fires and mitigating other emergencies.   
          The amount of time a firefighter spends on his or her education,  
          training, and previous experience should not be barrier to  
          continued employment.  With respect to a fire department, the  
          first priority is to engage a firefighting force that is best  
          capable of keeping a community safe and therefore, fire  
          department applicants should be viewed as first rate candidates.





          The sponsor argues that this bill levels the playing field for  
          job applicants by allowing their credentials and qualifications  
          for the position - earned in service to the citizens of  
          California - speak instead of their status as a current or  
          former public employee.  


          


          ARGUMENTS IN OPPOSITION





          A coalition of employer groups, including the California Chamber  
          of Commerce, opposes this bill and states the following:








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            "If the employer inquires into the applicant's relevant  
            background either through a written job application that asks  
            the applicant to list his or her prior employers, or through  
            an in-person interview to discuss the applicant's work  
            experience, and discovers the applicant's protected status as  
            a former or current public employee, then the employer will be  
            subject to potential civil litigation under [this bill] if the  
            employer does not ultimately hire the individual.


            Even if the decision to hire is based upon a separate,  
            unrelated reason other than the individual's status as a  
            former or public employee, once the "protected" information is  
            discovered, it creates the opportunity for a discrimination  
            lawsuit against the business.  Unlike other protected  
            classifications currently in California law, including age,  
            marital status, or disability, an applicant's prior employment  
            history is not something that an employer can easily navigate  
            away from while inquiring about an applicant's work experience  
            when interviewing or reviewing a candidate for employment in  
            order to avoid a discrimination claim?


            ?Moreover, we are not aware of any systematic discrimination  
            in the private sector against individuals who are either  
            current or former public employees that [this bill] seeks to  
            address.  The private sector should not be subject to the  
            provisions of this bill.  [This bill] will simply create more  
            opportunities for civil litigation against employers, with the  
            additional threat of treble damages, statutory fines and  
            employee-only attorney's fees."  


          


          REGISTERED SUPPORT / OPPOSITION:








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          Support


          Association for Los Angeles Deputy Sheriffs


          Association of Deputy District Attorneys


          California Association of Professional Employees


          California Employment Lawyers Association


          California Federation of Teachers


          California Nurses Association


          California Professional Firefighters (Sponsor)


          Glendale City Employees Association


          LIUNA Local 777


          LIUNA Local 792


          Los Angeles County Probation Officers Union, AFSCME, Local 685









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          Los Angeles Police Protective League


          Organization of SMUD Employees


          Riverside Sheriffs Association


          San Bernardino Public Employees Association


          San Diego County Court Employees Association


          San Luis Obispo County Employees Association




          Opposition


          California Association of Bed and Breakfast Inns


          California Chamber of Commerce


          California Hotel and Lodging Association


          California League of Food Processors 


          California Manufacturers and Technology Association










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          California Retailers Association 


          CAWA - Representing the Automotive Parts Industry


          Chamber of Commerce Mountain View


          Civil Justice Association of California 


          El Centro Chamber of Commerce & Visitors Bureau


          Fullerton Chamber of Commerce


          Greater Bakersfield Chamber of Commerce


          Greater Fresno Area Chamber of Commerce


          Irvine Chamber of Commerce


          National Federation of Independent Business


          Palm Desert Area Chamber of Commerce


          Redondo Beach Chamber of Commerce and Visitors Bureau


          Santa Clara Chamber of Commerce and Convention Visitors Bureau










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          Santa Maria Valley Chamber of Commerce and Visitors Convention  
          Bureau


          Simi Valley Chamber of Commerce


          South Bay Association of Chambers of Commerce


          Western Electrical Contractors Association




          Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091