BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 984


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          Date of Hearing:   April 28, 2015


           ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND  
                                   INTERNET MEDIA


                             Ian Charles Calderon, Chair


          AB 984  
          (Calderon) - As Amended March 26, 2015


          SUBJECT:  Use of age information in employment.


          SUMMARY:  Prohibits employers from using information found  
          online, as specified, to discriminate against job applicants.  
          Specifically, this bill:  


          1)Clarifies that an employer shall not use information obtained  
            on an Internet Website regarding a person's age to  
            discriminate against that person for employment, whether an  
            applicant for employment or an employee.


          2)States that a commercial online entertainment employment  
            service provider that knowingly accepts payment from persons  
            in California to post their resumes and photos online is  
            subject to the antidiscrimination laws of this state.


          3)Provides the following definitions:


             a)   "Commercial online entertainment employment service  
               provider" means a person or business that owns, licenses,  








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               or otherwise possesses computerized data that includes  
               personal information of people employed in the  
               entertainment industry, including television, films, and  
               video games, and that makes the personal information  
               available to the public or potential employers.


             b)   "Payment" means for a fee in exchange for  
               advertisements, or any other form of compensation or  
               benefit.


          4)Makes related findings and declarations.


          EXISTING LAW:  


          1)States that all persons within the jurisdiction of this state  
            are free and equal and no matter what their sex, race, color,  
            religion, ancestry, national origin, disability, or medical  
            condition and are entitled to the full and equal  
            accommodations, advantages, facilities, privileges, or  
            services in all business establishments of every kind  
            whatsoever. [Civil Code Section 51(b).]

          2)Prohibits employment discrimination covering employers, labor  
            organizations, employment agencies, apprenticeship programs  
            and any person or entity who aids, abets, incites, compels, or  
            coerces the doing of a discriminatory act. It prohibits  
            employment discrimination based on race or color; religion;  
            national origin or ancestry, physical disability; mental  
            disability or medical condition; marital status; sex or sexual  
            orientation; age, with respect to persons over the age of 40;  
            and pregnancy, childbirth, or related medical conditions.  
            (Government 12900 et seq.)

          FISCAL EFFECT:  Unknown









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          COMMENTS:  


          1)Author & sponsor's statement of need for legislation: Existing  
            laws against age discrimination need shoring up in the online  
            employment environment. According to the author, "Age  
            discrimination in employment is against both federal and state  
            law. In California the relevant statutes are the California  
            Fair Employment and Housing Act (FEHA) and the Unruh Civil  
            Rights Act. Sadly, despite these laws age discrimination  
            continues to exist and is facilitated through public  
            distribution of potential job applicant's birth and age  
            information via commercial online employment service  
            providers. 


            "Even the fear of age discrimination is troubling in the  
            entertainment industry, where one woman sued Internet Movie  
            Database (IMDb), an online cast and crew referral site used by  
            the entertainment community, for revealing her age. In her  
            complaint, the plaintiff pointed out that, "one is perceived  
            to be 'over-the-hill,' when approaching 40" in Hollywood. She  
            further alleges that age is such a powerful employment  
            screening factor, "it is nearly impossible for an  
            up-and-coming actress, such as the Plaintiff, to get work as  
            she is thought to have less of an 'upside' therefore casting  
            directors, producers, directors, agents/managers, etc. do not  
            give her the same opportunities, regardless of her appearance  
            and talent."  Currently, birthdate and age are prominently  
            displayed on the IMDb public page. 





            Additionally, the author points out, "one complicating factor  
            in the fight against age discrimination in Hollywood is the  
            notion that artistic freedom provides a haven from  








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            antidiscrimination laws. Indeed the law recognizes a defense  
            against charges of discrimination for a bona fide occupational  
            qualification (BFOQ) which would allow for a man to be cast in  
            the role of a husband, or a child to be cast in the role of a  
            school girl."  However, the author contends that, "anyone who  
            has ever seen Glee or 21 Jump Street knows we are not looking  
            at high school aged actors, and famously Olivia Newton-John  
            was 29 when she starred as high school cheerleader Sandy in  
            the movie Grease. Therefore, the true question posed under the  
            age discrimination BFOQ is what age can an actor play - not  
            what year are they born."





            The Screen Actors Guild/American Federation of Television and  
            Radio Artists are the sponsors of this legislation and have  
            written the committee to say, "In the case of actors, an  
            employer casting a part may make a decision based on how young  
            or old the actor looks but may not exclude the actor from  
            trying out for the part simply because of his or her  
            biological age. In other words, an actor's biological age  
            cannot be a bar to applying for the part. We all know that  
            frequently actors play the role of persons that are different  
            from their true biological age. After all, the essence of  
            acting is creating an illusion."


          2)Age discrimination remains a stubborn problem. According to  
            studies, the recent economic downturn now known as the Great  
            Recession led to large increases in unemployment rates and  
            unemployment durations for workers of all ages, but duration  
            of unemployment rose far more for older workers than for  
            younger workers. Statistics from the U.S. Equal Employment  
            Opportunity Commission show that from 2006-2013, age  
            discrimination claims rose 38%.  The AARP reports that, "Age  
            discrimination claims have been on the rise since 1997, when  
            15,785 reports were filed, according to the Equal Employment  








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            Opportunity Commission. Last year, 21,396 claims were  
            recorded. Not every lawsuit is valid, experts say. Many are  
            settled without assigning blame. Companies are sometimes  
            hamstrung by the law from giving their side of the story in  
            age discrimination cases. On the other hand, consumer  
            advocates and lawyers say recorded claims represent only a  
            slice of the total number of workers who get pushed out of a  
            job because they are older. One possible reason for the trend:  
            an aging population. More than 20 % of workers in the United  
            States, some 33 million, are age 55 and up, according to the  
            Bureau of Labor Statistics." (Forced Out, Older Workers Are  
            Fighting Back, by Carole Fleck, AARP Bulletin, May 2014,  
             http://www.aarp.org/work/on-the-job/info-2014/workplace-age-dis 
            crimination-infographic.html  , accessed April 22, 2015.)


          3)Long arm jurisdiction of California: Purposeful availment and  
            sufficient minimum contacts. This bill contains two major  
            provisions, the first clarifies that an employer shall not use  
            information obtained on an Internet Website regarding a  
            person's age to discriminate against that person for  
            employment. The second states that a commercial online  
            entertainment employment service provider that knowingly  
            accepts payment from persons in California to post their  
            resumes and photos online is subject to the antidiscrimination  
            laws of this state.



            In order for one state to assert jurisdiction over a business  
            located in another state, the law requires that there be  
            sufficient minimum contacts, (e.g. contracts, directed  
            advertisements or customers) for the assertion of jurisdiction  
            to be found reasonable. The United States Supreme Court has  
            decided a number of cases that have established and refined  
            the principle that it is unfair for a court to assert  
            jurisdiction over a party unless that party's contacts with  
            the state in which that court sits are such that the party  
            "could reasonably expect to be hauled into court" in that  








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            state. This jurisdiction must "not offend traditional notions  
            of fair play and substantial justice". International Shoe Co.  
            v. Washington, 326 U.S. 310 (1945).




            A non-resident defendant has minimum contacts with the forum  
            state if they 1) have direct contact with the state; 2) have a  
            contract with a resident of the state; 3) have placed their  
            product into the stream of commerce such that it reaches the  
            forum state, 4) seek to serve residents of the forum state; 5)  
            have satisfied the Calder effects test; or 6) have a  
            non-passive website viewed within the forum state. (Citations  
            omitted.)





            The test for whether websites may provide minimum contacts is  
            outlined in the Zippo decision, where the court found that  
            commercial websites which do a substantial volume of business  
            over the Internet, and through which customers in any location  
            can immediately engage in business with the website owner,  
            provides a basis for jurisdiction. Zippo Manufacturing Co. v.  
            Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).





            In this case, the proposed legislation is targeted to  
            commercial Internet sites which knowingly do business with  
            California residents through exchanging payment for the  
            service of posting resumes and photographs on their site.  
            Thus, the bill appears to comply with the constitutional  
            requirements for California to assert jurisdiction.









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          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Labor Federation, AFL-CIO


          California Teamsters Public Affairs Council


          Screen Actors Guild-American Federation of Television and Radio  
          Artists




          Opposition


          There is no opposition on file.




          Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)  
          319-3450
















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