BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1450|
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THIRD READING
Bill No: AB 1450
Author: Allen (D), et al.
Amended: 8/22/12 in Senate
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM : 5-0, 6/27/12
AYES: Lieu, DeSaulnier, Leno, Padilla, Yee
NO VOTE RECORDED: Wyland, Runner
SENATE JUDICIARY COMMITTEE : 3-1, 7/3/12
AYES: Evans, Corbett, Leno
NOES: Blakeslee
NO VOTE RECORDED: Harman
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/16/12
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Dutton
ASSEMBLY FLOOR : 51-26, 5/30/12 - See last page for vote
SUBJECT : Employment: discrimination: status as
unemployed
SOURCE : Author
DIGEST : This bill states that an employer shall not
publish in print, on the Internet, or any other medium an
advertisement or announcement for any job that includes
either of the following (1) a provision stating or
indicating that an individual's current employment is a
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requirement for a job, and (2) a provision stating or
indicating that an employer will not consider an applicant
for employment based on that individual's employment
status.
ANALYSIS : Existing law, the Fair Employment and Housing
Act, prohibits discrimination in housing and employment on
the basis of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, or sexual orientation.
This bill 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/22/12)
American Federation of State, County and Municipal
Employees, AFL-CIO
California Alliance for Retired Americans
California Communities United Institute
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
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California Labor Federation
California Nurses Association
California School Employees Association
California State Association of Electrical Workers
California State Pipe Trades Council
California Teamsters Public Affairs Council
California Workforce Association
Coalition of California Utility Employees
Consumer Attorneys of California
Consumer Federation of California
Engineers and Scientists of California
Glendale City Employees Association
International Longshore & Warehouse Union
International Union of Elevator Constructors
Laborers' Locals 777 & 972
Legal Service for Prisoners with Children
National Association of Social Workers, California Chapter
National Employment Law Project
Northern California District Council of the international
Longshore and Warehouse Union
Organization of SMUD Employees
Professional & Technical Engineers, Local 21
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
UNITE HERE!
United Food and Commercial Workers Union, Western States
Council
Western States Council of Sheet Metal Workers
OPPOSITION : (Verified 8/22/12)
Air Conditioning Trade Association
Associated Builders and Contractors of California
Associated General Contractors
California Apartment Association
California Association of Bed & Breakfast Inns
California Association of Joint Powers Authorities
California Bankers Association
California Chamber of Commerce
California Chapter of American Fence Association
California Employment Law Council
California Farm Bureau Federation
California Fence Contractors' Association
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California Framing Contractors Association
California Grocers Association
California Hotel & Lodging Association
California Independent Grocers Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers & Technology Association
California Retailers Association
City of Palm Desert
Claremont Chamber of Commerce
Easter Seals Superior California
Engineering Contractors' Association
Flasher Barricade Association
Greater Riverside Chamber of Commerce
Marin Builders Association
National Federation of Independent Business
Orange County Business Council
Plumbing-Heating-Cooling Contractors Association of
California
San Gabriel Valley Legislative Coalition of Chambers
TechAmerica
TechNet
Western Electrical Contractors Association Inc.
ARGUMENTS IN SUPPORT : The California Labor Federation
states:
The current economic downturn presents unemployed
workers with a wide variety of unique challenges: our
unemployment rate hovers at over 10 �percent], and
those without jobs have found themselves idled for
historic lengths of time. From 4 workers fighting
over every available job to the shifting demands of
today's economy, it's never been harder to find
stable, reliable work.
In addition, this recession has given birth to a new
and particularly insidious form of discrimination.
Across the country, many employers, employment
agencies, and online job websites have begun to openly
advertise warnings like "no unemployed candidates
considered at all" or "must be currently employed."
Creating a perverse catch-22, these corporations
require that you already have a job in order to get a
job?.
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AB 1450 will ban this discrimination, whether in
advertisements or through hiring policies. Employers
will also be prohibited from refusing to hire someone
because of their employment status, while an
employer's right to consider employment history will
be explicitly protected.
This common sense reform simply ends blanket policies
that exclude qualified workers, and thus the bill only
affects employers currently engaging in the practice.
Meanwhile, California's unemployed will face one less
obstacle between them and a successful return to the
workforce.
ARGUMENTS IN OPPOSITION : The California Chamber of
Commerce and other organizations state that:
AB 1450 prohibits employers from considering an
applicant's current "employment status" when hiring
for an available position, unless such status
satisfies a "bona fide occupational" requirement.
Despite the fact that the bill states it does not
prohibit an employer from conducting a review of the
applicant's employment status or the reasons for any
separation of employment, AB 1450 will essentially do
just that. In order to avoid accidentally exposing an
applicant's current status as "unemployed" during the
application process, employers will ultimately be
barred from: (1) asking for information regarding the
applicant's most recent employer; (2) the dates of
employment with the most recent employer; or (3)
reasons for the separation of employment with the most
recent employer. Any of these legitimate inquiries
could reveal that the applicant is currently
unemployed, thereby subjecting the prospective
employer to fees, penalties, and an administrative
claim through the Division of Labor Standards
Enforcement (DLSE), as well as potential litigation
under the Labor Code Private Attorney General Act
(PAGA), or Business and Professions Code section 17200
et. seq. for alleged unfair business practices.
Moreover, AB 1450 does not differentiate between those
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applicants who are unemployed due to their inadequate
or insufficient performance with their most recent
employer, versus those applicants who were
unfortunately a part of a lay-off. An employer should
be allowed to investigate the reasons a person is
unemployed, including whether the applicant was
recently terminated for serious misconduct, before
offering that person a job and bringing him/her into
the workplace. AB 1450, however, would place
employers in the impossible situation of either: (1)
investigating an applicant's most recent employment,
including the reasons for the separation of his/her
employment with the employer and potentially face an
administrative claim or litigation for the alleged
violation of AB 1450 if the applicant is ultimately
not hired; or (2) forego any investigation into the
most recent employment of the applicant to prevent a
claim that he/she was discriminated against on the
basis of the applicant's "unemployed status," and risk
a potential negligent hiring claim on the backend for
hiring an at-risk employee that the employer knew or
should have known was a potential danger.
AB 1450 will also essentially create a hiring
preference for such individuals, especially for state
contractors. Instead of basing an employment decision
on the actual qualifications of the applicant,
employers will likely lean towards an unemployed
applicant solely to eliminate any claim of alleged
discrimination. This will certainly be the case for
state contractors, as AB 1450 unfairly targets these
employers by threatening them with three years of
debarment if found to have discriminated against an
applicant based upon their unemployed status.
Finally, this bill will not affect the unemployment
rate. If there is an available position, the employer
will ultimately hire someone. The only thing AB 1450
does is instruct a private employer on who they can
and cannot hire, which we believe is inappropriate.
The ability to determine which candidate is the most
qualified for an available position is an independent
decision that should be left to the employer, not
state government.
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ASSEMBLY FLOOR : 51-26, 05/30/12
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes,
Furutani, Galgiani, Gatto, Gordon, Hall, Hayashi, Roger
Hern�ndez, Hill, Huber, Hueso, Huffman, Lara, Bonnie
Lowenthal, Ma, Mendoza, Mitchell, Monning, Pan, Perea, V.
Manuel P�rez, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada, John A. P�rez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Beth Gaines, Garrick, Grove, Hagman, Halderman, Harkey,
Jeffries, Jones, Knight, Logue, Mansoor, Miller, Morrell,
Nestande, Nielsen, Norby, Olsen, Portantino, Silva,
Smyth, Wagner
NO VOTE RECORDED: Fletcher, Gorell, Valadao
RJG:PQ:n 8/22/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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