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: 9/4/15 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.
Senate Floor Amendments of 9/4/15 specify job posting
requirements for state and local agencies; remove various
provisions related to a state or local agency communicating or
disclosing that an applicant's status as a current or former
public employee disqualifies them from employment or making an
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Page 2
adverse employment decision as well as the section related to a
person operating an Internet Web site; specify that a local or
state agency must determine the applicant meets minimum
employment qualifications before asking for disclosure of status
as a public employee; and states that the section shall become
operable on July 1, 2017.
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 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 that an
individual's status as a current or former public employee
disqualifies an individual from eligibility for employment.
b) Ask an applicant to specifically disclose, orally or in
writing, the applicant's status as a current or former
public employee until the employer has determined that the
applicant meets the minimum employment qualifications for
the position.
2)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:
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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.
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.
3)States that a violation of the section does not result in a
misdemeanor.
4)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.
5)States that the section shall become operative on July 1,
2016.
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, prohibits harassment and
discrimination in employment because of, among other things,
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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.
Such protections 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
funds) for the Department of Industrial Relations to process,
review, and investigate complaints.
SUPPORT: (Verified9/4/15)
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
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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: (Verified9/4/15)
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
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
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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 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.
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.
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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
9/8/15 14:42:01
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