BILL ANALYSIS Ó AB 883 Page 1 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. AB 883 Page 2 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. AB 883 Page 3 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. AB 883 Page 4 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). AB 883 Page 5 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. AB 883 Page 6 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: AB 883 Page 7 "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: AB 883 Page 8 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 AB 883 Page 9 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 AB 883 Page 10 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 AB 883 Page 11 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