BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 883| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 883 Page 2 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 AB 883 Page 3 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. AB 883 Page 4 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 AB 883 Page 5 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 AB 883 Page 6 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 AB 883 Page 7 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. AB 883 Page 8 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 **** END **** AB 883 Page 9