BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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