BILL NUMBER: AB 1450 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 14, 2012
INTRODUCED BY Assembly Member Allen
( Principal coauthors:
Assembly Members Mendoza and Swanson
)
(Coauthors: Assembly Members Mendoza
and Swanson Alejo,
Ammiano, Beall, Blumenfield, Fong,
Hall, Solorio, and Wieckowski
)
JANUARY 5, 2012
An act to add Chapter 2.5 (commencing with Section
1812.50953) to Title 2.91 of Part 4 of Division 3 of the Civil Code,
and to add Chapter 3.95 (commencing with Section
1046) 1045) to Part 3 of Division 2 of the Labor
Code, and to add Section 10285.6 to the Public
Contract Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1450, as amended, Allen. Employment: discrimination: status as
unemployed.
Existing law contains provisions that define unlawful
discrimination and employment practices by employers and employment
agencies.
This bill would make it unlawful, unless based on a bona fide
occupational qualification or any other provision of law, for an
employer to knowingly or intentionally refuse to consider
for employment or refuse to offer employment to an individual because
of the individual's status as unemployed, publish ,
an employment agency, or a person who operates an Internet Web site
for posting jobs in this state to take specified employment actions
relating to employment status, as defined, including, among other
things, refusing to hire a person because of that person's
employment status and publishing an advertisement or
announcement for any job that includes provisions pertaining to an
individual's current employment or employment status
as unemployed, as specified, or direct or request that an
employment agency take an individual's status as unemployed into
account in screening or referring applicants for employment
, as specified .
The bill would also make it unlawful, unless based on a bona fide
occupational qualification or any other provision of law, for an
employment agency to knowingly or intentionally refuse to consider or
refer an individual for employment because of the individual's
status as unemployed, limit, segregate, or classify individuals in
any manner that may limit their access to information about jobs or
referral for consideration of jobs because of their status as
unemployed, or publish an advertisement or announcement, as described
above with respect to employers.
This bill would subject an employer or ,
an employment agency , or a person who operates an
Internet Web Site for posting jobs in this state who violates
the above provisions to civil penalties that increase as the number
of violations increase. The bill would state that it shall
not be construed to create a private cause of action, as specified.
The State Contract Act governs contracting between state agencies
and private contractors, and sets forth requirements for the
procurement of materials, supplies, equipment, and services by state
agencies.
This bill would provide that failure to comply with the
requirements of the bill would constitute a breach of the contract
and may be grounds for canceling, terminating, or suspending the
contract, as specified, and debarring the contractor from eligibility
for an award of future state agency contracts for a period not to
exceed 3 years, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 2.5 (commencing with Section
1812.50953) is added to Title 2.91 of Part 4 of Division 3 of the
Civil Code, to read:
CHAPTER 2.5. EMPLOYMENT AGENCY DISCRIMINATION ON THE BASIS OF
UNEMPLOYMENT STATUS
1812.50953. (a) For purposes of this chapter, "status as
unemployed" means an individual's present or past unemployment
regardless of the length of time that the individual was unemployed.
(b) Unless based on a bona fide occupational qualification, an
employment agency shall not knowingly or intentionally do any of the
following:
(1) Refuse to consider or refer an individual for employment
because of the individual's status as unemployed.
(2) Limit, segregate, or classify individuals in any manner that
may limit their access to information about jobs or referral for
consideration of jobs because of their status as unemployed.
(3) Publish in print, on the Internet, or in any other medium, an
advertisement or announcement for any job that includes either of the
following:
(A) A provision stating or indicating that an individual's status
as unemployed disqualifies the individual for a job.
(B) A provision stating or indicating that an employer will not
consider an applicant for employment based on that individual's
status as unemployed.
(c) This chapter does not prohibit an employment agency from doing
either of the following:
(1) Publishing, in print, on the Internet, or in any other medium,
an advertisement or announcement for any job that sets forth other
lawful qualifications for a job, including the holding of a current
and valid professional or occupational license, certificate,
registration, permit, or other credential, or a minimum level of
education or training or professional, occupational, or field
experience.
(2) Printing, circulating, or causing to be printed or circulated
a publication, advertisement, or solicitation for a job vacancy that
contains any provision stating that only applicants who are currently
employed by a particular employer will be considered.
(d) An employment agency shall not do either of the following:
(1) Interfere with, restrain, or deny the exercise of or the
attempt to exercise any right provided under this chapter.
(2) Discriminate against any individual because the individual:
(A) Opposed any practice made unlawful by this chapter.
(B) Has caused to be instituted any proceeding under or related to
this chapter.
(C) Has given, or is about to give, any information in connection
with any inquiry or proceeding relating to any right provided under
this chapter.
(D) Has testified, or is about to testify, in any inquiry or
proceeding relating to any right provided under this chapter.
(e) (1) An employment agency that violates this section shall be
subject to a civil penalty in an amount not to exceed one thousand
dollars ($1,000) for the first violation, five thousand dollars
($5,000) for the second violation, and ten thousand dollars ($10,000)
for each subsequent violation, enforceable by the Attorney General
or any city attorney.
(2) Notwithstanding Section 1812.523, this chapter does not
create, establish, or authorize a private cause of action by an
aggrieved person against an employment agency that has violated, or
is alleged to have violated, this chapter.
(3) A violation of this chapter does not constitute a misdemeanor
pursuant to Section 1812.523.
SEC. 2. SECTION 1. Chapter 3.95
(commencing with Section 1046) 1045) is
added to Part 3 of Division 2 of the Labor Code, to read:
CHAPTER 3.95. EMPLOYER EMPLOYMENT
DISCRIMINATION ON THE BASIS OF UNEMPLOYMENT
EMPLOYMENT STATUS
1045. For purposes of this chapter, the following definitions
apply:
(a) "Contractor" means a person who is a party to a contract with
a state governmental agency, including any department, division,
subcontractor, or other unit that is responsible for performance
under the contract. "Contractor" does not include a state government
agency.
(b) "Employer" means a person who has 15 or more employees for
each working day in each of 20 or more calendar weeks in the current
or preceding calendar year and includes both of the following:
(1) A person who acts, directly or indirectly, in the interest of
an employer with respect to employing individuals to work for the
employer.
(2) A successor in interest of an employer.
(c) "Employment agency" has the same meaning as defined in Section
1812.501 of the Civil Code.
(d) "Employment status" means an individual's present
unemployment, regardless of the length of time that the individual
has been unemployed.
1046. (a) For purposes of this chapter, the following
definitions apply:
(1) "Employer" means a person who has 15 or more employees for
each working day in each of 20 or more calendar weeks in the current
or preceding calendar year and includes both of the following:
(A) A person who acts, directly or indirectly, in the interest of
an employer with respect to employing individuals to work for the
employer.
(B) A successor in interest of an employer.
(2) "Status as unemployed" means an individual's present or past
unemployment regardless of the length of time that the individual was
unemployed.
(b) Unless based on a bona
fide occupational qualification, an employer shall not
knowingly or intentionally do any of the following:
(1) Refuse to consider for employment or refuse to offer
employment to an individual because of the individual's
employment status as unemployed .
(2) Publish in print, on the Internet, or in any other medium
, an advertisement or announcement for any job
that includes either of the following:
(A) A provision stating or indicating that an individual's
status as unemployed disqualifies the individual
current employment is a requirement for a job.
(B) A provision stating or indicating that an employer will not
consider an applicant for employment based on that individual's
employment status as unemployed .
(3) Direct or request that an employment agency , as
defined in subdivision (a) of Section 1812.501 of the Civil Code,
take an individual's employment status
as unemployed into account in screening or referring
applicants for employment.
(c) This
(b) Unless based on a bona fide occupational qualification, an
employment agency shall not do any of the following:
(1) Refuse to offer employment to an individual, or to consider or
refer an individual for employment because of the individual's
employment status.
(2) Limit, segregate, or classify individuals in any manner that
may limit their access to information about jobs or referral for
consideration of jobs because of their employment status.
(3) Publish in print, on the Internet, or in any other medium an
advertisement or announcement for any job that includes either of the
following:
(A) A provision stating or indicating that an individual's current
employment is a requirement for a job.
(B) A provision stating or indicating that an employer will not
consider an applicant for employment based on that individual's
employment status.
(c) Unless based on a bona fide occupational qualification, a
person who operates an Internet Web site for posting jobs in this
state shall not publish on that Internet Web site an advertisement or
announcement for any job that includes:
(1) A provision stating or indicating that an individual's current
employment is a requirement for a job.
(2) A provision stating or indicating that an employer will not
consider an applicant for employment based on that individual's
employment status.
(d) This chapter does not
prohibit an employer , an employment agency, or a person
operating an Internet Web site for posting jobs in this state
from doing either of the following:
(1) Publishing, in print, on the Internet, or in any other medium,
an advertisement or announcement for any job that sets forth other
lawful qualifications for a job, including , but not limited to,
the holding of a current and valid professional or
occupational license, certificate, registration, permit, or other
credential, or a minimum level of education or training or
professional, occupational, or field experience.
(2) Printing or circulating or causing to be printed or circulated
a publication, advertisement, or solicitation for a job vacancy that
contains any provision stating that only applicants who are
currently employed by that employer will be considered.
(d)
(e) An employer , an employment agency, or a
person operating an Internet Web site for po sting
jobs in this state shall not do either of the following:
(1) Interfere with, restrain, or deny the exercise of or the
attempt to exercise any right provided under this chapter.
(2) Discriminate against any individual because the individual:
(A) Opposed any practice made unlawful by this chapter.
(B) Has caused to be instituted any proceeding under or related to
this chapter.
(C) Has given, or is about to give, any information in connection
with any inquiry or proceeding relating to any right provided under
this chapter.
(D) Has testified, or is about to testify, in any inquiry or
proceeding relating to any right provided under this chapter.
(e) (1)
(f ) An employer , an
employment agency, or a person operating an Internet Web site for
posting jobs in this state who violates this section shall be
subject to a civil penalty in an amount not to exceed one thousand
dollars ($1,000) for the first violation, five thousand dollars
($5,000) for the second violation, and ten thousand dollars ($10,000)
for each subsequent violation, enforceable by the Chief of
the Division of Labor Standards Enforcement Labor
Commissioner pursuant to the procedures specified in Chapter 4
(commencing with Section 79) of Division 1.
(2) This chapter does not create, establish, or authorize a
private cause of action by an aggrieved person against an employer
who has violated, or is alleged to have violated, this chapter.
1047. (a) A contract entered into after January 1, 2013, between
a state agency and a contractor who is an employer shall include an
express or implied requirement that the contractor comply with the
requirements of this chapter. Failure to comply with the requirements
of this chapter, as determined by the Labor Commissioner, pursuant
to subdivision (f) of Section 1046, shall constitute a breach of the
contract and may be grounds for canceling, terminating, or suspending
the contract, and debarring the contractor from eligibility for
future state agency contracts.
(b) In accordance with regulations adopted by the Division of
Labor Standards Enforcement, and upon determining that a contractor
who is an employer has violated this chapter, the Labor Commissioner
may, after consulting with the contracting state agency, do any or
all of the following:
(1) Direct the state agency to cancel, terminate, or suspend the
contract, or any segregable portion thereof.
(2) Debar the contractor from eligibility for an award of a future
state agency contract for a period not to exceed three years.
1048. This chapter does not preclude an employer, an employment
agency, or a person who operates an Internet Web site for posting
jobs in this state from considering an individual's employment
history or from examining the reasons underlying an individual's
employment status in assessing an individual's ability to perform a
job or in otherwise making employment decisions pertaining to that
individual.
SEC. 2. Section 10285.6 is added to the
Public Contract Code , to read:
10285.6. A contractor, as defined in Section 1045 of the Labor
Code, who has been debarred by the Labor Commissioner pursuant to
Section 1047 of the Labor Code for a period not to exceed three
years, shall be ineligible during that time for an award of a
contract pursuant to this chapter.