BILL ANALYSIS Ó
AB 1687
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Date of Hearing: May 3, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
AB 1687
(Calderon) - As Amended April 25, 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, and would require the
provider to remove the subscriber's age information from any
Internet website under the provider's control, if requested by
the subscriber. Specifically, this bill:
1)Provides that a commercial online entertainment employment
service provider (website) that enters into a contractual
agreement to provide employment services to an individual for
a subscription payment shall not, upon request by the
subscriber:
a) Publish or make public the subscriber's date of birth or
age information; or
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b) Share the subscriber's date of birth or age information
with any Internet websites for the purpose of publication.
2)Requires the website to remove the subscriber's date of birth
and age information from public view on all websites under its
control upon request by the subscriber.
3)Defines the following terms for purposes of this section:
a) "Commercial online entertainment employment service
provider" means a person or business that owns, licenses,
or otherwise possesses computerized information, including
but not limited to age and date of birth information, about
individuals employed in the entertainment industry,
including television, films, and video games, and that
makes the information available to the public or potential
employers.
b) "Payment" means a fee in exchange for advertisements, or
any other form of compensation or benefit.
c) "Provide employment services" means to post resumes,
photographs, or other information about a subscriber when
one of the purposes is to provide information about the
subscriber to a prospective employer.
d) "Subscriber" means a natural person who enters into a
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contractual agreement with a commercial online
entertainment employment service provider to receive
employment services for a subscription payment.
4)Declares that the purpose of the bill is to ensure that
information obtained on a website regarding an individual's
age will not be used in furtherance of employment or age
discrimination.
EXISTING LAW:
1)Provides, under the Unruh Civil Rights Act, 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, medical condition, genetic
information, marital status, sexual orientation, citizenship,
primary language, or immigration status 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 based on race, religious
creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic information,
marital status, sex, gender, gender identity, gender
expression, age, sexual orientation, or military and veteran
status and applies these 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 Code Section 12940 et
seq.)
FISCAL EFFECT: None. This bill is keyed nonfiscal by the
Legislative Counsel.
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COMMENTS:
1)Purpose of this bill . This bill is intended to help artists
protect their age in order to prevent age-based employment
discrimination in the entertainment industry by giving artists
control over whether their age and date of birth are posted on
subscription websites used for employment purposes. This
measure is sponsored by Screen Actors Guild-American
Federation of Television and Radio Artists (SAG-AFTRA).
2)Author's statement . 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."
3)Age discrimination as a growing problem . Since the recent
economic downturn, evidence suggests that older workers have
seen an increase in age-related discrimination. According to
statistics from the U.S. Equal Employment Opportunity
Commission, age discrimination claims rose 38% between 2006
and 2013. Older workers also remained unemployed longer than
their younger counterparts.
The American Association of Retired Persons (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 [age
discrimination] claims were recorded. Not every lawsuit is
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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.
4)Preventing discrimination based on age in the entertainment
industry . The author states that clarification of the law is
needed in the fight against age discrimination in Hollywood
because of the notion that artistic freedom provides a haven
from antidiscrimination laws.
Current 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.
The author contends, however, that anyone who has watched Glee
or 21 Jump Street knows high school aged characters are not
played by high school-aged actors. For example, Olivia
Newton-John was 29 when she starred as high school cheerleader
Sandy in the movie Grease.
The author contends that the true question posed under the age
discrimination BFOQ is what age an actor is capable of playing
- not what year they were born.
5)This bill in practice . The bill places two restrictions on
websites that provide employment- related online services on a
subscription basis: 1) the website must remove date of birth
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information at the request of a subscriber; and 2) the website
may not share date of birth information with other websites
that post public information about artists.
The author's amendments described in Comment 11 below, clarify
that websites that let the public add information about a
subscriber, such as IMDb.com, are not obliged to remove that
information unless and until the subscriber requests the
information to be removed.
6)Would this bill apply to out-of-state businesses? This
measure is targeted at commercial online employment services,
some of which are located outside of California, but who have
contracts with Californians or who otherwise do business in
California.
Generally speaking, in order for any 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 business unless that
business's contacts with the state are such that the business
"could reasonably expect to be hauled into court" in that
state. The jurisdiction must "not offend traditional notions
of fair play and substantial justice". International Shoe Co.
v. Washington, 326 U.S. 310 (1945)
The Ninth Circuit's legal test for whether a website has
"minimum contacts" with a state (for purposes of jurisdiction)
is outlined in the Zippo decision, where the court found that
commercial websites that 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,
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provides a basis for jurisdiction. Zippo Manufacturing Co. v.
Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997);
Cybersell, Inc. v. Cybersell, Inc., 130 F.3d.414 (9th Cir.
1997)
This bill applies only where there is a contractual
relationship between a website and an individual subscriber to
host information about the subscriber for a fee. Therefore,
this bill would apply to California-based businesses as well
as out-of-state businesses that have subscribers in
California. It would not apply to websites such as Wikipedia,
which may post publicly available information about an artist,
such as age and date of birth, but do not offer paid
subscriptions or employment services to artists.
However, this bill does specifically prohibit a commercial
online entertainment employment service provider from sharing
a subscriber's date of birth or age with public websites, such
as Wikipedia, if the subscriber makes a request to the
provider not to share this information. This provision is
important because while birth records are public records, many
artists use a pseudonym or stage name rather than their birth
name, so in fact their true name, age and date of birth are
not readily accessible to the public.
7)Arguments in support . According to the bill's sponsor,
SAG-AFTRA, "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
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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."
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."
8)Related legislation . AB 2068 (Holden) 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
Assembly Appropriations Committee.
9)Prior legislation . AB 984 (Calderon) of 2015 would have
prohibited employers from using age and birthdate information
found online to discriminate against job applicants. AB 984
died in the Assembly Appropriations Committee.
10)Double-referral . This bill was double-referred to the
Assembly Arts, Entertainment, Sports, Tourism and Internet
Media Committee, where it was heard on April 12, 2016, and
passed on a 6-1 vote.
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11)Author's amendments . The author has agreed to accept the
below amendments to address a drafting error, establish a
deadline by which commercial online entertainment employment
service provider must comply with a request under this bill,
and, lastly, to address a concern expressed when the bill was
heard in the prior committee that a provider should not be
held liable for content posted by the public on its website
unless a subscriber first requests that the age information be
removed:
a) On Page 2, line 23, strike "data"
b) On Page 2, line 16, strike out "shall" and insert:
shall, within five days
c) On page 2, line 19, after the period insert:
A commercial online entertainment employment service provider
that permits members of the public to upload or modify Internet
content on its own Internet Web site or any Internet Website
under its control without prior review by that provider shall
not be deemed in violation of this section unless first
requested by the subscriber to remove age information.
REGISTERED SUPPORT / OPPOSITION:
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Support
Screen Actors Guild-American Federation of Television and Radio
Artists (SAG-AFTRA) (sponsor)
Association of Talent Agents
California Labor Federation
Opposition
None on file.
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200
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