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.
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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