BILL ANALYSIS Ó AB 1687 Page 1 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 AB 1687 Page 2 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 AB 1687 Page 3 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. AB 1687 Page 4 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 AB 1687 Page 5 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 AB 1687 Page 6 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, AB 1687 Page 7 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 AB 1687 Page 8 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. AB 1687 Page 9 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: AB 1687 Page 10 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 AB 1687 Page 11