BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 883|
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                                   THIRD READING 


          Bill No:  AB 883
          Author:   Low (D)
          Amended:  8/31/15 in Senate
          Vote:     21  

           SENATE LABOR & IND. REL. COMMITTEE:  4-1, 6/24/15
           AYES:  Mendoza, Jackson, Leno, Mitchell
           NOES:  Stone

           SENATE JUDICIARY COMMITTEE:  5-2, 7/14/15
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Moorlach, Anderson

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 8/27/15
           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  52-27, 6/3/15 - See last page for vote

           SUBJECT:   Employment:  public employee status


          SOURCE:    California Professional Firefighters


          DIGEST:  This bill prohibits a state or local agency, as  
          defined, from advertising or announcing a job that discriminates  
          against an applicant who is 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  








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          prospective and current employees against employment  
          discrimination.



          Existing state 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  
          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 a state or local agency, 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  







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            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.



             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.










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               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)States that a violation of the section does not result in a  
            misdemeanor.


          5)Sets the following definitions:


             a)   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. 


             b)   State agency means any state office, officer,  
               department, division, bureau, board, commission, or agency.


             c)   Local agency means any county, city, city and county,  
               including a charter city or county, or any special  
               district. 


          Comments 







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          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 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. 

          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. 

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Senate Appropriations Committee, unknown costs,  
          potentially in the hundreds of thousands of dollars, (special  







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          funds) for the Department of Industrial Relations to process,  
          review, and investigate complaints.


          SUPPORT:   (Verified8/28/15)


          California Professional Firefighters (source)
          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
          Laborers' International Union of North America Local 777
          Laborers' International Union of North America 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:   (Verified8/28/15)


          Chamber of Commerce Mountain View
          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
          Palm Desert Area Chamber of Commerce
          Redondo Beach Chamber of Commerce and Visitors Bureau
          Santa Clara Chamber of Commerce and Convention Visitors Bureau
          South Bay Association of Chambers of Commerce 








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          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.  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 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.  

          ARGUMENTS IN OPPOSITION: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.







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          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 additional threat  
          of treble damages, statutory fines and employee-only attorney's  
          fees.

          ASSEMBLY FLOOR:  52-27, 6/3/15
          AYES:  Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,  
            Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,  
            Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,  
            Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández,  
            Holden, Irwin, Jones-Sawyer, Levine, Linder, Lopez, Low,  
            McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk,  
            Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,  
            Ting, Weber, Williams, Wood, Atkins
          NOES:  Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,  
            Chávez, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Harper,  
            Jones, Kim, Lackey, Maienschein, Mathis, Mayes, Melendez,  
            Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Thurmond

          Prepared by:Deanna Ping / L. & I.R. / (916) 651-1556
          8/31/15 9:06:09


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