BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 883 Hearing Date: June 24,
2015
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|Author: |Low |
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|Version: |June 1, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Deanna Ping |
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Subject: Employment: public employee status.
KEY ISSUE
Should the Legislature prohibit an employer from making an
employment decision based on an applicant's current or former
status as a public employee?
Should the Legislature prohibit an employer or person that
operates a specified job posting website from posting a job
announcement stating that an applicant must not be a current or
former public employee?
ANALYSIS
Existing federal and state law contains provisions that define
unlawful discrimination and lawful employment practices by
employers and employment agencies to protect both prospective
and current employees against employment discrimination.
Existing law prohibits harassment and discrimination in
employment because of, among other things, race, color,
religion, sex, sexual orientation, marital status, mental and
physical disability, age and/or retaliation for protesting
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illegal discrimination related to one of these categories or for
reporting patient abuse in tax supported institutions.
(Government Code §12940, 12945, 12945.2)
This Bill 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.
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
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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.
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.
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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)States that a violation of the section does not result in a
misdemeanor.
COMMENTS
1. Need for this bill?
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. 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.
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.
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According to the author, 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. The
author specifically brought attention to a posting from the
San Ramon Valley Fire Protection District regarding openings
for firefighter/paramedic positions that had under
qualifications, "must not be a current participant in a
government retirement system." The author argues that by
discriminating against potential applicants in this way, an
employer may be excluding an entire group of qualified
applicants. The author states that AB 883 helps level the
playing field and will prohibit an employer from
discriminating against a current or former public employee.
2. Double Referral:
AB 883 has been double referred to Senate Judiciary Committee.
3. Proponent Arguments :
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. They argue that 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. They argue that 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.
The sponsor notes that firefighters are highly-skilled and
highly-trained first responders and many are also public
employees. They argue that many of the skills that
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firefighters acquire in their profession come from firsthand
experience on the front lines - responding to fires and
mitigating other emergencies and the amount of time a
firefighter spends on his or her education, training, and
previous experience should not be barrier to continued
employment.
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.
4. Opponent Arguments :
Opponents argue that under AB 883 if the employer inquiries
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 if the employer does not ultimately hire the
individual.
Opponents contend that 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. They argue that
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.
Lastly, opponents argue that they are not aware of any
systematic discrimination in the private sector against
individuals who are either current or former public employees
that AB 883 seeks to address and that the private sector
should not be subject to the provisions of this bill.
Opponents contend that AB 883 will simply create more
opportunities for civil litigation against employers, with the
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additional threat of treble damages, statutory fines and
employee-only attorney's fees.
5. Prior Legislation :
AB 2271 (Calderon) of 2014, would have prohibited an employer,
employment agency, or a person who operates an internet web
site from including in a job posting that an applicant cannot
be unemployed. This bill was vetoed by the Governor
AB 1450 (Allen) of 2012, would have prohibited an employer
from publishing in print, on the internet, or any other medium
an advertisement or announcement that stated or indicated that
an individual's current employment is a requirement for a job.
This bill was vetoed by the Governor.
AB 218 (Dickinson), Chapter 699, Statutes of 2013, prohibits a
state or local agency from asking an applicant for employment
to disclose information concerning the conviction history of
the applicant, including any inquiry about conviction history
on any employment application, until the agency has determined
the applicant meets the minimum employment qualifications, as
stated in any notice issued for the position. This bill
(AB2271) is more consistent with this approach.
SUPPORT
California Professional Firefighters (Sponsor)
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 Labor Federation, AFL-CIO
California Nurses Association
California School Employees Association
Glendale City Employees Association
LIUNA Local 777
LIUNA Local 792
Los Angeles County Probation Officers Union, AFSCME, Local 685
Los Angeles Police Protective League
Organization of SMUD Employees
Riverside Sheriffs Association
San Bernardino Public Employees Association
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San Diego County Court Employees Association
San Jose Firefighters, IAFF Local 230
San Luis Obispo County Employees Association
Service Employees International Union, AFL-CIO
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
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
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 (WECA)
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