BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 883 (Low)
Version: June 1, 2015
Hearing Date: July 7, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Employment: public employee status
DESCRIPTION
This bill would prohibit an employer or person who operates an
Internet Web site from advertising or announcing a job that
discriminates against an applicant who is a current or former
public employee.
BACKGROUND
The Equal Employment Opportunity Commission (EEOC) enforces
Title VII of the Civil Rights Act of 1964 (Title VII), which
prohibits employment discrimination based on race, color,
religion, sex or national origin. Various California statutes,
such as the Fair Employment and Housing Act (FEHA) and the Unruh
Civil Rights Act, prohibit discrimination in employment,
housing, public accommodation and services provided by business
establishments on the basis of specified personal
characteristics such as sex, race, color, national origin,
religion, and disability. Over time, these statutes have been
amended to include other characteristics such as medical
conditions, marital status, and sexual orientation. Also over
time, other statutes were amended to reflect the state's public
policy against discrimination in all forms.
This bill seeks to prohibit employment discrimination against
current or former public employees applying for public or
private employment.
AB 883 (Low)
Page 2 of ?
This bill was heard by the Senate Labor and Industrial Relations
Committee on June 24, 2015, and was approved by a vote of 4-1.
CHANGES TO EXISTING LAW
Existing federal law , Title VII of the Civil Rights Act,
prohibits discrimination and harassment of employees. (42
U.S.C. Sec. 2000e et seq.)
Existing law , the Fair Employment and Housing Act (FEHA),
prohibits, as a matter of public policy, discrimination and
harassment in employment on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status. (Gov. Code
Sec. 12940 et seq.)
Existing law prohibits various employment practices relating to
contracts and applications for employment. (Lab. Code Sec. 430
et seq.)
Existing law prohibits a public or private employer from asking
an applicant to disclose information concerning an arrest or
detention that did not result in a conviction, as specified.
(Lab. Code Sec. 432.7.)
Existing law prohibits a state or local agency from asking an
applicant for employment to disclose information concerning the
conviction history of the applicant until the agency has
determined the applicant meets the minimum employment
qualifications, as stated in any notice issued for the position.
(Lab. Code Sec. 432.9.)
Existing law makes it a misdemeanor for violating those
prohibitions on employment practices. (Lab. Code Sec. 433.)
This bill would prohibit an employer, including a public
employer, from doing any of the following:
publishing in print, on an Internet Web site, or in any other
medium, 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;
communicating or disclosing directly or indirectly, through
any written form or verbally, that an applicant's status as a
AB 883 (Low)
Page 3 of ?
current or former public employee disqualifies an individual
from eligibility for employment; and
making an adverse employment decision based on an applicant's
current or former employment as a public employee.
This bill would prohibit a person who operates an Internet Web
site for posting jobs in this state from publishing on that
Internet Web site 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.
This bill would not prohibit an employer or a person who
operates an Internet Web site for posting jobs from:
publishing in print, on an Internet Web site, or in any other
medium, an advertisement or announcement for a job that
contains provisions setting forth qualifications for the job,
including:
o holding a current and valid professional or occupational
license, certificate, registration, permit, or other
credential;
o requiring a minimum level of education or training or
professional, occupational, or field experience; or
o stating that only individuals who are current employees
of the employer will be considered for that job;
setting forth qualifications for a job, including:
o holding a current and valid professional or occupational
license, certificate, registration, permit, or other
credential;
o requiring a minimum level of education, training, or
professional, occupational, or field experience; or
o stating that only individuals who are current employees
of the employer will be considered for that job;
obtaining information regarding an individual's current or
former status as a public employee, including recent relevant
experience;
having knowledge of a person's current or former status as a
public employee; or
otherwise making employment decisions pertaining to that
individual.
This bill would clarify that an employer would not be subject to
a misdemeanor for violating this bill.
COMMENT
AB 883 (Low)
Page 4 of ?
1. Stated need for the bill
The author writes:
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 [Sections]
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 [Section] 432.7).
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 [the]
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.
Unfortunately, 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
AB 883 (Low)
Page 5 of ?
retirement plan.
AB 883 prohibits employers from publishing or posting a job
advertisement that would disqualify an applicant who is
currently, or was at one point, a public employee.
2. Prohibiting discrimination against employment applicants who
are current or former public employees
This bill would prohibit an employer, including a public
employer, from discriminating against employment applicants who
are current or former public employees by prohibiting the
employer from:
publishing in print, on an Internet Web site, or in any other
medium, 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;
communicating or disclosing directly or indirectly, through
any written form or verbally, that an applicant's status as a
current or former public employee disqualifies an individual
from eligibility for employment; and
making an adverse employment decision based on an applicant's
current or former employment as a public employee.
This bill would also prohibit a person who operates an Internet
Web site for posting jobs in this state from discriminating
against current or former public employees by publishing on that
Internet Web site 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. However, this bill would not
prohibit an employer or a person who operates an Internet Web
site for posting jobs from setting forth qualifications for a
job or publishing in print, on an Internet Web site, or in any
other medium, an advertisement or announcement for a job that
contains provisions setting forth qualifications for the job,
including:
holding a current and valid professional or occupational
license, certificate, registration, permit, or other
credential;
requiring a minimum level of education or training or
professional, occupational, or field experience; or
stating that only individuals who are current employees of the
employer will be considered for that job.
AB 883 (Low)
Page 6 of ?
This bill would also authorize an employer or Internet Web site
job poster to obtain information regarding an individual's
current or former status as a public employee, including recent
relevant experience and have knowledge of a person's current or
former status as a public employee; or otherwise make employment
decisions pertaining to that individual.
According to the author, employers are beginning to discriminate
against qualified job applicants that disclose they are current
or former public employees. The San Jose Fire Firefighters,
IAFF Local 230, in support, report that "it was brought to our
attention that job postings for other fire departments,
including the San Ramon Valley Protection District, specifically
stated that current public safety employees who participated in
a government retirement system were not allowed to apply for
firefighter positions." Indeed, the author provided a job
posting from the San Ramon Valley Fire Protection District
seeking applicants for a firefighter/paramedic position. The
job posting stated under qualifications that the applicant
"[m]ust not be a current participant in a government retirement
system and must not be eligible for reciprocity with [the Contra
Costa County Employees Retirement Association (CCCERA)]."
LIUNA Locals 777 and 792, in support, state that this
discrimination is aimed at "requiring applicants to not be
participants in governmental retirement plans. Consequently and
unfortunately, qualified job applicants - often even the most
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 (as only public employees are eligible to
be members of a governmental retirement plan.)"
The California Labor Federation, AFL-CIO, in support, contends
that "[s]uch discriminatory employment practices are simply bad
public policy for the State of California. Punishing potential
applicants due to his or her previous experience as a public
employee potentially [disincentivizes] public service. Further,
by discriminating against applicants in this way, an employer
may be excluding an entire group of highly qualified applicants
from consideration."
According to the Contra Costa County Employees Retirement
Association (CCCERA), "[r]eciprocity encourages career public
AB 883 (Low)
Page 7 of ?
service by allowing retirement benefit credits to accrue and
link together from one public employer to another public
employer. For example, if you are employed with Contra Costa
County and decide to take a job with Alameda County, your
service may qualify as reciprocal, since Contra Costa County and
Alameda County are both 1937 Act counties (retirement benefits
legislated under the 1937 Act). There are advantages to being a
reciprocal member of a retirement system:
Your retirement contribution rate in all reciprocal systems,
which is usually based on your age at entry into the first
reciprocal system, will be lower. (Younger members pay a
lower contribution rate, since they have more time to
contribute before retirement.)
Service credits earned in all reciprocal systems may be used
to meet system vesting and retirement eligibility.
When you retire, your highest rate of final compensation from
any reciprocal system will be used by all reciprocal systems
to calculate your benefit. (For Contra Costa County, the final
average salary will be based on either a 12 month or 36 month
final average salary calculation, depending on your retirement
tier.)
Benefits are computed by each system based on the benefit
formula for each retirement system." (CCCERA, Reciprocity
[as of June 22,
2015].)
Notably, the San Ramon Valley Fire Protection District
disqualifies an applicant who is "a current participant in a
government retirement system and must not be eligible for
reciprocity with CCCERA," but it is not specifically
discriminating against current or former government employees,
who would be provided protection under this bill. Rather, it
appears that the District is trying to hire applicants who may
opt to invest in their retirement as a new member at higher
contribution rates than what they are currently contributing
based on current membership in a government retirement program.
Adding new members at a higher contribution rate would help
stabilize the District's retirement system, which has been a
major concern for retirement programs following the Great
Recession, which began in December, 2007.
Although this bill may not actually remedy the discrimination
against a member of a government retirement program, this bill
would prohibit an employer from discriminating against a current
or former public employee, as long as the applicant is not a
AB 883 (Low)
Page 8 of ?
member of a government retirement program. Accordingly, the
author offers the following amendment in Committee to clarify
that the bill would provide discrimination protection for
current and former public employees, as well as individuals who
are participants in a government retirement program.
Author's amendment :
On page 3, below line 40, insert "(e) As used in this section,
"current or former public employee" includes any person who is
currently, or was previously, employed by a public entity, as
well as any person who is a participant in a government
retirement system."
3. Oppositions' concerns
A coalition of opposition argues that this bill would preclude
an employer from adequately inquiring into relevant employment
work history without the threat of costly litigation, including
treble damages. The opposition argues that this bill prohibits
an employer from inquiring into an applicant's relevant work
experience for a position and finds that the applicant is either
a current or former public employee, the employer would not be
able to hire the employee for the position as that would be an
"employment decision." Further, the opposition argues that if
the employer inquires into the applicant's relevant background
and discovers the applicant's protected status as a former or
current public employee, the employer would be subject to
potential civil litigation under this bill if the employer does
not ultimately hire the applicant, regardless of whether there
may be unrelated concerns that would otherwise disqualify the
applicant.
Conversely, if the employer fails to adequately investigate the
applicant's work history prior to hiring the applicant out of a
desire to avoid liability under this bill, the employer could be
exposed to a potential negligent hiring claim if the employee
ultimately engages in dangerous conduct that the employer could
or should have discovered by conducting a pre-hire background
investigation. The opposition also notes that they are unaware
of any systematic discrimination in the private sector against
individuals who are current or former employees that this bill
seeks to address, so the private sector should not be subject to
the provisions of this bill. The opposition argues that this
bill will simply create more opportunities for civil litigation
against employers.
AB 883 (Low)
Page 9 of ?
Support : Association for Los Angeles Deputy Sheriffs;
Association of Deputy District Attorneys; California Association
of Professional Employees; California Federation of Teachers,
AFT, AFL-CIO; California Labor Federation, AFL-CIO;
California-Nevada Conference of Operating Engineers; California
Nurses Association; California School Employees Association,
AFL-CIO; 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; 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; Lake Tahoe South Shore 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
HISTORY
Source : California Professional Firefighters
Related Pending Legislation : AB 676 (Calderon, 2015) would
prohibit discrimination by an employer based on a prospective
job applicant's employment status. AB 676 is currently in the
Senate Appropriations Committee.
AB 883 (Low)
Page 10 of ?
Prior Legislation :
AB 2271 (Calderon, 2014) was substantially similar to AB 676 and
was vetoed because Governor Brown believed it could impede the
state's efforts to connect unemployed workers to prospective
employers, and that the bill would not provide the proper path
to helping unemployed Californians get back to work.
AB 218 (Dickinson, Chapter 699, Statutes of 2013) prohibits a
state or local agency from asking an employment applicant to
disclose information concerning the applicant's conviction
history until the agency has determined the applicant meets the
minimum employment qualifications as stated in any notice issued
for the employment position.
AB 1450 (Allen, 2012) was substantially similar to AB 676 and
was vetoed by Governor Brown because he believed AB 1450 would
lead to unnecessary confusion.
Prior Vote :
Senate Labor & Industrial Relations Committee (Ayes 4, Noes 1)
Assembly Floor (Ayes 52, Noes 27)
Assembly Appropriations Committee (Ayes 12, Noes 5)
Assembly Labor and Employment Committee (Ayes 5, Noes 1)
**************