BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1687


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          Date of Hearing:  April 12, 2016


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


                                  Kansen Chu, Chair


          AB 1687  
          (Calderon) - As Introduced January 20, 2016


          SUBJECT:  Customer records:  age information:  commercial online  
          entertainment employment service providers.


          SUMMARY:  Prohibits a commercial online entertainment employment  
          service provider, as defined, that enters into an agreement to  
          provide certain employment services from publishing or sharing  
          information about the subscriber's age as specified, and would  
          require the provider to remove any information regarding the  
          subscriber's age from any Internet website under the provider's  
          control if requested by the subscriber.


          Specifically, this bill:  


          1)Declares that the purpose of this section is to ensure that  
            information obtained on an Internet website regarding a  
            person's age will not be used in furtherance of employment or  
            age discrimination.



          2)Provides that a commercial online entertainment employment  
            service provider that enters into a contractual agreement to  








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            provide employment services to an individual for a  
            subscription payment shall not, upon request by the  
            subscriber, do either of the following:



             a)   Publish or make public the subscriber's date of birth or  
               age information.



             b)   Share the subscriber's date of birth or age information  
               with any Internet websites for the purpose of publication.



          3)Further provides that a commercial online entertainment  
            employment service provider subject to item 2 above shall  
            remove the subscriber's date of birth and age information from  
            public view on all Internet websites under its control upon  
            specific request by the subscriber naming the Internet  
            websites.



          4)States that for purposes of this section, the following  
            definitions apply:



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










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



             c)   "Provide employment services" means post resumes,  
               photographs, or other information about a job applicant  
               when one of the purposes is to provide individually  
               identifiable information to a prospective employer. 



          5)Makes related findings and declarations.
          EXISTING LAW:


          1)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.


            Applies the above stated prohibitions to 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. (Government 12900 et seq.)


          2)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).]








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          FISCAL EFFECT:  Unknown.


          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."


            The Screen Actors Guild/American Federation of Television and  
            Radio Artists (SAG-AFTRA) are the sponsors of this legislation  
            and have written the committee to say, "Under California's  
            FEHA, an employer is generally prohibited from asking the age  
            of a job applicant until a bone fide offer of employment is  
            made. However, since the advent of the internet and social  
            media, employment referral websites designed for the use of  
            casting professionals and others have provided access online  
            to birthdate information which would be illegal for employers  
            to seek in hard copy. Once having this information, they may  
            discriminate against the job seeker on the basis of age  
            without it being traced."


            Additionally, the author point out that clarification of the  
            law is needed due to the "complicating factor in the fight  
            against age discrimination in Hollywood which is the notion  
            that artistic freedom provides a haven from antidiscrimination  
            laws. Indeed the law recognizes a defense against charges of  








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            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."





            SAG-AFTRA adds, "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  
            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  








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            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.)


            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 employment 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.  



          3)Long arm jurisdiction of California: Purposeful availment and  
            sufficient minimum contacts. This measure is targeted at  
            commercial online employment services, some of which are  
            located outside of California. 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  








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            contacts with the state in which that court sits are such that  
            the party "could reasonably expect to be hauled into court" in  
            that 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  








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            requirements for California to assert jurisdiction.


          4)Prior and related legislation. 


             a)   AB 2068 (Holden), Legislation of 2016, would require  
               talent services that post information about artists under  
               contract via online services, online applications, and  
               mobile applications, to remove photographs and other artist  
               information from those locations upon an artist's request  
               within 10 days.  This measure is currently pending before  
               the committee.


             b)   AB 984 (Calderon) of 2015, would have prohibited  
               employers from using age and birthdate information found  
               online, as specified, to discriminate against job  
               applicants. Status: Held in the Assembly Appropriations  
               Committee.


          5)Double-referral: Should this bill pass out of this committee,  
            it will be re-referred to the Assembly Committee on Privacy  
            and Consumer Protection.


          REGISTERED SUPPORT / OPPOSITION:




          Support




          SAG-AFTRA (sponsor)









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          California Labor Federation




          Opposition


          There is no opposition on file




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