Existing law creates the Division of Labor Standards Enforcement in the Department of Industrial Relations for the purpose of enforcing labor laws. Existing law prohibits various forms of employment discrimination with respect to the personal characteristics of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information.

This bill, on and after July 1, 2016, would prohibit an employer from publishing an advertisement or announcement for a job that states or indicates that an unemployed person is not eligible for the job. The bill would prohibit an employer from asking an applicant for employment to disclose, orally or in writing, the applicants employment status, except as specified.

Existing law creates the Division of Labor Standards Enforcement in the Department of Industrial Relations for the purpose of enforcing labor laws. Existing law prohibits various forms of employment discrimination with respect to the personal characteristics of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information.

This bill, on and after July 1, 2016, would prohibit an employer, an employment agency, or a person who operates an Internet Web site for posting jobs in this state to publish employer from publishing an advertisement or announcement for a job that states or indicates that current employment is a requirement, unless this is based on a bona fide occupational qualification. an unemployed person is not eligible for the job. The bill would prohibit an employer or employment agency from asking an applicant for employment to disclose, orally or in writing, information concerning the applicants current employment status, except as specified. The bill would prohibit an employer, an employment agency, or a person operating an Internet Web site for posting jobs from interfering with, or discriminating against, a person exercising these rights. The bill would subject an employer, 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 escalate with the number of violations. The bill would provide that a private right of action is not authorized for a violation of these provisions.

Existing law creates the Division of Labor Standards Enforcement in the Department of Industrial Relations for the purpose of enforcing labor laws. Existing law prohibits various forms of employment discrimination with respect to the personal characteristics of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information.

This bill, on and after July 1, 2016, would prohibit an employer, an employment agency, or a person who operates an Internet Web site for posting jobs in this state to publish an advertisement or announcement for a job that states or indicates that current employment is a requirement, unless this is based on a bona fide occupational qualification. The bill would prohibit an employer or employment agency from asking an applicant for employment to disclose, orally or in writing, information concerning the applicants current employment status, except as specified. The bill would prohibit an employer, an employment agency, or a person operating an Internet Web site for posting jobs from interfering with, or discriminating against, a person exercising these rights. The bill would subject an employer, 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 escalate with the number of violations. The bill would provide that a private right of action is not authorized for a violation of these provisions.

GOVERNOR'S VETO

GV Bill Id:AB 676

Author:(Calderon)

As Enrolled Ver:September 8, 2015

2/3 vote

Original Committee Reference: L. & E.

SUMMARY: Enacts various provisions of law related to discrimination based on an individual's employment status (present unemployment).

The Senate amendments revise this bill to instead do the following:

1. Define "employment status" to mean an individual's present unemployment, regardless of length of time that the individual has been unemployed.

2. Prohibit an employer from doing either of the following:

   1. Publishing an advertisement or announcement for any job that includes a provision stating or indicating that an unemployed person is not eligible for the job.

   2. Ask an applicant to disclose, orally or in writing, the applicant's employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position, as stated in the published notice for the job.

3. Provide that this bill shall not be construed to prohibit an employer from:

   1. Publishing an advertisement or announcement for any job that contains any provision setting forth qualifications for a job, including:

      1. Holding a current and valid professional or occupational license, certificate, registration, permit, or other credential.

      2. Requiring a minimum level of education or training, or professional, occupational, or field experience.

      3. Stating that only individuals who are current employees of the employer will be considered for that job.

   2. Setting forth qualifications for any job, including:

      1. Holding a current and valid professional or occupational license, certificate, registration, permit, or other credential.

      2. Requiring a minimum level of education or training, or professional, occupational, or field experience.

      3. Stating that only individuals who are current employees of the employer will be considered for that job.

   3. Obtaining information regarding an individual's employment, including recent relevant experience.

   4. Having knowledge of a person's employment status.

   5. Inquiring as to the reasons for an individual's employment status.

   6. Refusing to offer employment to a person because of the reasons underlying an individual's employment status.

   7. Otherwise making employment decisions pertaining to that individual.

4. Provide that this bill shall become operative on July 1, 2016.

FISCAL EFFECT: According to the Senate Appropriations Committee, the Department of Industrial Relations would potentially incur increased administrative costs in the range of $1 million annually (special funds) as a result of the bill, to process, review, and investigate complaints.

COMMENTS: According to the author, research shows that the long-term unemployed are frequently overlooked and sometimes excluded from job opportunities. Employers and employment agencies have posted job vacancy notifications with language such as "No unemployed candidates considered at all" or "Only currently employed candidates will be considered."

Employers are disinclined to hire even well-qualified job applicants who have been out of work for six months or longer. Three Princeton economists found that only 11% of those unemployed for more than six months will ever regain steady full-time work.

Therefore, the author states that this bill would seek to prevent employers from affirmatively asking an applicant for employment to disclose the individual's employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.

AB 2271 (Calderon) of 2014, which was similar, but not identical, to this bill was vetoed by Governor Brown.

GOVERNOR'S VETO MESSAGE:

This bill would prohibit an employer from discriminating against job applicants based on the applicant's status as unemployed.

This bill is substantially similar to the bill I vetoed last year. Nothing has changed. I still believe that the author's approach does not provide a proper or even effective path to get unemployed people back to work.

Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0002493

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 676

Author:(Calderon)

As Amended Ver:August 31, 2015

Majority vote

Original Committee Reference: L. & E.

SUMMARY: Enacts various provisions of law related to discrimination based on an individual's employment status (present unemployment).

The Senate amendments revise this bill to instead do the following:

1. Define "employment status" to mean an individual's present unemployment, regardless of length of time that the individual has been unemployed.

2. Prohibit an employer from doing either of the following:

   1. Publishing an advertisement or announcement for any job that includes a provision stating or indicating that an unemployed person is not eligible for the job.

   2. Ask an applicant to disclose, orally or in writing, the applicant's employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position, as stated in the published notice for the job.

3. Provide that this bill shall not be construed to prohibit an employer from:

   1. Publishing an advertisement or announcement for any job that contains any provision setting forth qualifications for a job, including:

      1. Holding a current and valid professional or occupational license, certificate, registration, permit, or other credential.

      2. Requiring a minimum level of education or training, or professional, occupational, or field experience.

      3. Stating that only individuals who are current employees of the employer will be considered for that job.

   2. Setting forth qualifications for any job, including:

      1. Holding a current and valid professional or occupational license, certificate, registration, permit, or other credential.

      2. Requiring a minimum level of education or training, or professional, occupational, or field experience.

      3. Stating that only individuals who are current employees of the employer will be considered for that job.

   3. Obtaining information regarding an individual's employment, including recent relevant experience.

   4. Having knowledge of a person's employment status.

   5. Inquiring as to the reasons for an individual's employment status.

   6. Refusing to offer employment to a person because of the reasons underlying an individual's employment status.

   7. Otherwise making employment decisions pertaining to that individual.

4. Provide that this bill shall become operative on July 1, 2016.

FISCAL EFFECT: According to the Senate Appropriations Committee, the Department of Industrial Relations would potentially incur increased administrative costs in the range of $1 million annually (special funds) as a result of the bill, to process, review, and investigate complaints.

COMMENTS: According to the author, research shows that the long-term unemployed are frequently overlooked and sometimes excluded from job opportunities. Employers and employment agencies have posted job vacancy notifications with language such as "No unemployed candidates considered at all" or "Only currently employed candidates will be considered."

Employers are disinclined to hire even well-qualified job applicants who have been out of work for six months or longer. Three Princeton economists found that only 11% of those unemployed for more than six months will ever regain steady full-time work.

Therefore, the author states that this bill would seek to prevent employers from affirmatively asking an applicant for employment to disclose the individual's employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.

AB 2271 (Calderon) of 2014, which was similar, but not identical, to this bill was vetoed by Governor Brown.

Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0001648

 THIRD READING  

Bill No: AB 676

Author: Calderon (D)

Amended: 8/31/15 in Senate

Vote: 21

SENATE LABOR & IND. REL. COMMITTEE: 4-1, 6/24/15

AYES: Mendoza, Jackson, Leno, Mitchell

NOES: Stone

SENATE JUDICIARY COMMITTEE: 5-2, 6/30/15

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15

AYES: Lara, Beall, Hill, Leyva, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 51-27, 6/2/15 - See last page for vote

SUBJECT: Employment: discrimination: status as unemployed

SOURCE: Author

DIGEST: This bill prohibits an employer from 1) publishing an advertisement or announcement for a job that includes a provision stating or indicating that an unemployed person is not eligible; and 2) asking an applicant to disclose the applicant’s employment status until the employer has determined that he/she meets the minimum employment qualifications for the position.

ANALYSIS:

Existing law:

1. Authorizes employers to conduct an investigation, such as a background check, into a person’s character for employment purposes.

2. Defines unlawful discrimination and lawful employment practices by employers and employment agencies to protect both prospective and current employees against employment discrimination.

3. Prohibits, under the Fair Employment and Housing Act, harassment and discrimination in employment because of, among other things, race, color, religion, sex, sexual orientation, marital status, mental and physical disability, age and/or retaliation for protesting illegal discrimination related to one of these categories or for reporting patient abuse in tax supported institutions.

4. Prohibits employers from discriminating, discharging or refusing to hire an employee based on an employee’s lawful conduct during nonworking hours away from the employer’s premises.

This bill:

1. Prohibits an employer, on and after July 1, 2016, from doing the following:

1. Publishing in print, on the Internet, or in any other medium, an advertisement or announcement for a job that includes a provision stating or indicating that an unemployed person is not eligible.

2. Asking an applicant to disclose, orally or in writing, the applicant’s employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position, as stated in the published notice for the job.

2. Defines “employer” as the state or any political or civil subdivision of the state or any person, as defined, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.

3. Defines “employment status” as an individual’s present unemployment, regardless of the length of time that he/she has been unemployed.

4. Specifies that these provisions shall not be construed to prohibit an employer from:

   1. Publishing, as specified, an advertisement or announcement for any job that contains provisions setting forth job qualifications, including:

      1. Holding a current and valid professional or occupational license, certificate, registration, permit, or other credential.

      2. Requiring a minimum level of education or training, or professional, occupational, or field experience.

      3. Stating that only individuals who are current employees of the employer will be considered for that job.

   2. Obtaining information regarding an individual’s employment, including recent relevant experience.

   3. Having knowledge of a person’s employment status.

   4. Inquiring as to the reasons for an individual’s employment status.

   5. Refusing to offer employment to a person because of the reasons underlying an individual’s employment status.

   6. Otherwise making employment decisions pertaining to that individual.

5. Specifies that a violation of these provisions does not result in a person being guilty of a misdemeanor.

Background

“Unemployed Need Not Apply”

The nation has suffered from a severe unemployment crisis that has affected nearly all sectors of the economy. According to the National Employment Law Project, around 9.8 million workers were unemployed in May 2014, and 3.4 million, or 34.6 percent, of those workers were searching for work for six months or more. In the summer of 2010, news accounts began to emerge throughout the country suggesting that some employers were establishing blanket exclusions of unemployed workers from job consideration using terms like “must be currently employed” or “require current (or very recent) tenure,” as part of the qualifications for employment. One of the first stories reported, in May 2010, involved accounts by media in Atlanta reporting that Sony Ericsson's newly relocated headquarters had posted a job announcement for a marketing position that explicitly stated, "No Unemployed Candidates Considered At All."

Subsequently, in early 2011, the National Employment Law Project (NELP) conducted a four-week review of the nation's most prominent online job listing websites. NELP's research of job postings identified more than 150 ads that included exclusions based on current employment status. (Briefing Paper: Hiring Discrimination against the Unemployed, National Employment Law Project, July 12, 2011) Most of the ads specifically stated that applicants "must be currently employed."

Existing law also prohibits harassment and discrimination in employment because of race, color, religion, sex and sexual orientation, among others. However, nothing specifically addresses the issue of discriminating against the unemployed. This bill attempts to ban such a practice under state law by prohibiting employers from discriminating against prospective job applicants on the basis of his/her employment status.

White House: Addressing the Negative Cycle of Long-Term Unemployment

In January 2014, the White House released a report, “Addressing the Negative Cycle of Long-Term Unemployment,” which explored the challenge of long-term unemployment, something it called "the worst legacy of the Great Recession." Among other things, the report found that, although the long and short-term unemployed have similar credentials overall, research suggests that the long-term unemployed face significant disadvantages in the labor market simply by virtue of their status as being long-term unemployed. In response to these findings, the Obama Administration announced the following:

1. New Best Practices for Hiring and Recruiting Long-Term Unemployed: The Administration has engaged with America’s leading businesses to develop best practices for hiring and recruiting the long-term unemployed and ensure they receive a fair shot during hiring. Over 80 of the nation’s largest businesses have signed on as well as many small- and medium-sized businesses.

2. Presidential Memorandum to Make Sure the Federal Government Does the Same: The President will also lead by example to make sure that individuals who are unemployed or have faced financial difficulties through no fault of their own receive fair treatment and consideration for employment by federal agencies.

3. Fund programs that help find employment: The Department of Labor is seeking to fund new programs that build on models that have shown success in helping the long-term unemployed find employment through innovative partnerships and proven strategies, including job-training, subsidized employment, and sector-based strategies.

Prior Legislation

AB 2271 (Calderon, 2014) was nearly identical to the previous version of this

bill and was vetoed by the Governor. Amendments to AB 676 taken out of Senate

Appropriations Committee have revised and recast the provisions to achieve the

author’s goal, however, AB 2271 included civil penalties for violations of these

provisions and the current version of this bill does not.

AB 1450 (Allen, 2012) was similar, but not identical, to this bill and was also

vetoed by the Governor. AB 1450 also included state contracts and would have specified that failure to comply would be grounds for cancelling, terminating, or suspending the contract and debarring the contractor (for up to three years) from eligibility for future state contracts.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, the Department of Industrial Relations would potentially incur increased administrative costs in the range of $1 million annually (special funds) to process, review, and investigate complaints.

SUPPORT: (Verified 8/27/15)

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Employment Lawyers Association

California Labor Federation, AFL-CIO

California Nurses Association

California State Firefighters’ Association

California Teamsters Public Affairs Council

Engineers & Scientists of California

Glendale City Employees Association

International Longshore & Warehouse Union

National Association of Social Workers, CA Chapter

Organization of SMUD Employees

Professional & Technical Engineers

San Bernardino Public Employees Association

San Diego County Court Employees Association

Service Employees International Union

San Luis Obispo County Employees Association

UNITE-HERE, AFL-CIO

Utility Workers Union of America

OPPOSITION: (Verified 8/27/15)

None received

ARGUMENTS IN SUPPORT: According to the author, research shows that the long-term unemployed are frequently overlooked and sometimes excluded from job opportunities. Employers and employment agencies have posted job vacancy notifications with language such as “No unemployed candidates considered at all” or “Only currently employed candidates will be considered.” Proponents argue that the long-term unemployed are some of California’s most in-need individuals whose harm is compounded when their attempts to re-enter the work force are thwarted by this type of discrimination. They cite a study which found that long-term unemployed workers with otherwise identical resumes were called back for interviews at rates 45% lower than the short-term unemployed. Proponents believe this bill will level the playing field for the long-term unemployed and allow a person’s credentials and qualifications to speak first, rather than their status as an unemployed individual.

ASSEMBLY FLOOR: 51-27, 6/2/15

AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Atkins

NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Chávez, Nazarian

Prepared by: Alma Perez / L. & I.R. / (916) 651-1556

8/31/15 8:54:38

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 676 (Calderon) - Employment: discrimination: status as unemployed.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 27, 2015

Bill Summary:

AB 676 would prohibit an employer from discriminating against prospective job applicants on the basis of employment status.

Fiscal Impact:

The Department of Industrial Relations (DIR) would potentially incur increased administrative costs in the range of $1 million annually (special funds) to process, review, and investigate complaints.

Author Amendments:

Recast the bill’s provisions within the Labor Code related to Ban the Box bills, and narrow them to those over which the Department of Industrial Relations has jurisdiction.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 676 (Calderon) - Employment: discrimination: status as unemployed.

This bill meets the criteria for referral to the Suspense File.

Bill Summary: AB 676 would prohibit an employer from discriminating against prospective job applicants on the basis of employment status. This bill would provide that an employer, employment agency, or person operating an Internet job posting Web site who discriminates against unemployed job applicants would be subject to a civil penalty, enforceable by the Labor Commissioner.

Fiscal Impact: The Department of Industrial Relations (DIR) would incur increased administrative costs in the range of $1 million to $3 million annually (special funds) as a result of the bill, to process, review, and investigate complaints.

Background: Existing law authorizes employers to conduct an investigation, such as a background check, into a person’s character for employment purposes. Existing law also prohibits harassment and discrimination in employment because of race, color, religion, sex, and sexual orientation, among others. Existing law does not address discrimination based on a person’s employment status.

Proposed Law: This bill would do all of the following:

• Prohibit an employer or an employment agency from affirmatively asking an applicant to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.

• Prohibit an employment agency, unless based on a bona fide occupational qualification, from limiting, segregating, or classifying an individual in any manner that may limit that individual's access to information about jobs or referrals for consideration of jobs because of the individual's employment status.

• Prohibit an employer, employment agency, or person operating a job posting website from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any rights provided under this bill, or discriminating against an individual because the individual has engaged in specified activities.

• Authorize an individual aggrieved by a violation of this bill to file a complaint with the Labor Commissioner.

• Establish civil penalties of $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation.

• Specify this bill does not create or authorize a private right of action.

• Define "employment status" to mean an individual's present unemployment, regardless of length of time that the individual has been unemployed

Related Legislation:

• This bill is nearly identical to AB 2271 (Calderon) of 2014, which was vetoed by the Governor. The veto message indicated the following: "This bill would prohibit an employer from discriminating against job applicants based on the applicant's status as unemployed. While I support the intent of this bill, it could impede the state's efforts to connect unemployed workers to prospective employers as currently drafted. The problems facing our state's long term unemployed are great. There is no doubt that those Californians want to get back to work and I want to help them get there - unfortunately this bill does not provide the proper path to address this problem."

• Additionally, this bill is similar, but not identical, to AB 1450 (Allen) from 2012, which was also vetoed by the Governor. AB 1450 would have, among other things, prohibited an employer from publishing an advertisement or announcement that indicated that an individual’s current employment is a requirement for a job. This bill differs from AB 1450 in that it simply prohibits an employer from asking an applicant to disclose information concerning his/her current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.

Staff Comments: Any employee or applicant for employment who believes he or she was discharged or denied employment or otherwise retaliated or discriminated against in violation of any law under the jurisdiction of DIR may file a complaint under Labor Codes 98.6 and 98.7. Investigating whether an alleged violator’s action was made under a bona fide occupational qualification is workload intensive.

After a complaint is filed, the complaint will be reviewed to confirm that DIR has jurisdiction over the specific complaint. If it is found that the complaint comes under the jurisdiction of the department, it is assigned to a retaliation complaint investigator who will contact the employer and any witnesses with information regarding the alleged discrimination or retaliation. If appropriate, the investigator may request the parties meet to explore the possibility of settlement. Investigators have the authority to issue subpoenas to obtain evidence related to the case. Once the investigation is complete, if no settlement is reached, the investigator will prepare a written summary of findings.

The Labor Commissioner will review the summary of findings and make a determination. If the Commissioner finds the employer violated the law by retaliating or discriminating against the employee or job applicant, the employer will be given ten days to file an appeal or to comply with the determination to remedy the retaliation or discrimination. If the employer fails to comply, an attorney for the Labor Commissioner will file a court action to enforce the determination. On occasion, the Labor Commissioner may hold a hearing to fully establish the facts of the complaint.

This bill would specifically create new retaliation protections for large categories of individuals, specifically the unemployed. This cohort currently totals roughly 1.5 million people. As noted above, the bill would create retaliation protection for non-employees (job applicants) and employees who may be discriminated against simply because of their status as unemployed. The number of individuals who would actually avail themselves of these protections is unknown. This is furthered by the fact that DIR would now have enforcement authority for a new group besides employers - 3rd party internet website providers, whose number of related cases potentially generated is also unknown. Taking all of this into account, DIR estimates it may need roughly $1 to $3 million to cover staff costs to handle the potential influx of claims. These numbers estimate that even if only .001 percent of potential claimants file claims, DIR could require over two dozen staff to process the retaliation cases.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 676 (Author:Calderon)

Version: February 25, 2015

Hearing Date: June 30, 2015

Fiscal: Yes

Urgency: No

Consultant: TMW

SUBJECT

Employment: discrimination: status as unemployed

DESCRIPTION

This bill, as of July 1, 2016, would prohibit an employer from discriminating against prospective job applicants on the basis of the applicant’s employment status. This bill would provide that an employer, employment agency, or person operating an Internet job posting Web site who discriminates against unemployed job applicants would be subject to a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation, enforceable by the Labor Commissioner.

BACKGROUND

Following the recent financial crisis that began in 2007, millions of Americans are currently unemployed. California has an unemployment rate of 6.5 percent, compared to about 5.4 percent nationally. Recently, reports are surfacing that many employers are requiring, as a part of the job description, that the applicant be currently employed.

On February 16, 2011, the Equal Employment Opportunity Commission (EEOC) held a public hearing to examine the impact of employers considering only those currently employed for job vacancies. According to the EEOC Press Statement on the hearing:

“Throughout its 45 year history, the EEOC has identified and remedied discrimination in hiring and remains committed to ensuring job applicants are treated fairly,” said EEOC Chair Jacqueline A. Berrien. “Today’s meeting gave the Commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools.”

According to Helen Norton, Associate Professor at the University of Colorado School of Law, employers and staffing agencies have publicly advertised jobs in fields ranging from electronic engineers to restaurant and grocery managers to mortgage underwriters with the explicit restriction that only currently employed candidates will be considered. “Some employers may use current employment as a signal of quality job performance,” Norton testified. “But such a correlation is decidedly weak. A blanket reliance on current employment serves as a poor proxy for successful job performance.”

“The use of an individual’s current or recent unemployment status as a hiring selection device is a troubling development in the labor market,” said Fatima Goss Graves, Vice President for Education and Employment of the National Women’s Law Center. She noted that this practice “may well act as a negative counterweight” to government efforts to get people back to work. Women, particularly older women and those in non-traditional occupations, are disproportionately affected by this restriction, testified Goss Graves.

Denying jobs to the already-unemployed can also have a disproportionate effect on certain racial and ethnic minority community members, Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, explained. Unemployment rates for African-Americans, Hispanics and Native Americans are higher than those of whites. When comparing college-educated workers, the unemployment rate for Asians is also higher. Thus, restricting applications to the currently employed could place a heavier burden on people of color, he concluded.

The use of employment status to screen job applicants could also seriously impact people with disabilities, according to Joyce Bender, an expert in the employment of people with disabilities. “Given my experience, I can say without a doubt that the practice of excluding persons who are currently unemployed from applicant pools is real and can have a negative impact on persons with disabilities,” Bender told the Commission. (Equal Empl. Opportunity Com., Press Release, Out of Work? Out of Luck: EEOC Examines Employers’ Treatment of Unemployed Job Applicants at Hearing (Feb. 16, 2011) <http://www.eeoc.gov/eeoc/newsroom/ release/2-16-11.cfm> [as of June 17, 2015].)

Following increased media attention on discrimination against unemployed workers in hiring practices, on July 12, 2011, the National Employment Law Project (NELP) released a study which found that, in one month, there were more than 125 online job postings that required candidates to be “currently employed.” According to the study, “[s]ignificantly, the fact that NELP’s relatively limited research yielded such a broad cross-section of exclusionary ads – with postings for jobs throughout the United States, by small, medium and large employers, for white collar, blue collar, and service sector jobs, at virtually every skill level – suggests that the practice of excluding unemployed job seekers could be far more extensive than depicted in this limited sample.” (National Employment Law Project, Briefing Paper, Hiring Discrimination Against the Unemployed (July 12, 2011) p. 2.)

Recent legislation aimed at protecting unemployed individuals seeking work was enacted in New Jersey, Oregon, and the District of Columbia, which now prohibit employers from specifying in print or Internet job advertisements that unemployed persons will not be considered for hire. New York City amended its Human Rights Law, effective June 11, 2013, to define a job applicant’s unemployed status as a protected class along with age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, and alienage/citizenship status and provides plaintiffs with the right to pursue private civil claims.

However, on the federal level, the Fair Employment Act of 2011, the Fair Employment Opportunity Act of 2011, and the American Jobs Act of 2011, were introduced and would have made it illegal for employers to discriminate based on employment status, but that legislation was not enacted. (See H.R. No. 1113, 112th Cong., 1st Sess. (2011); H.R. 2501, 112th Cong., 1st Sess. (2011); S. 1471, 112th Cong., 1st Sess. (2011); S. 1549, 112th Cong., 1st Sess., Part III, Subtitle D (2011); H.R. 12, 112th Cong., 1st Sess. (2011), Sec D.)

Similarly, this bill would prohibit discrimination by an employer based on a prospective job applicant’s employment status. This bill is similar to AB 1450 (Allen, 2012), which passed out of this Committee on a vote of 3-1 and was vetoed by Governor Brown because he believed AB 1450 would lead to unnecessary confusion. This bill is substantially similar to AB 2271 (Calderon, 2014), which was vetoed because Governor Brown believed it could impede the state’s efforts to connect unemployed workers to prospective employers, and that the bill would not provide the proper path to helping unemployed Californians get back to work.

This bill was heard by the Senate Labor and Industrial Relations Committee on June 24, 2015, and was approved by a vote of 4-1.

CHANGES TO EXISTING LAW

Existing law, the Fair Employment and Housing Act (FEHA), prohibits, as a matter of public policy, discrimination and harassment in employment on the basis of 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. (Gov. Code Sec. 12940 et seq.)

This bill would prohibit, unless based on a bona fide occupational qualification, an employer from either:

• publishing in print, on the Internet or in any other medium, an advertisement or announcement for any job that includes a provision stating or indicating that an individual’s current employment is a requirement for the job; or

• affirmatively asking an applicant for employment to disclose, orally or in writing, information concerning the applicant’s current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position, as stated in the published notice for the job.

This bill would prohibit, unless based on a bona fide occupational qualification, an employment agency from doing any of the following:

• publishing in print, on the Internet or in any other medium, an advertisement or announcement for any job that includes a provision stating or indicating that an individual’s current employment is a requirement for a job;

• limiting, segregating, or classifying an individual in any manner that may limit that individual’s access to information about jobs or referrals for consideration of jobs because of the individual’s employment status; and

• affirmatively asking an applicant for employment to disclose, orally or in writing, information concerning the applicant’s current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position, as stated in the published notice for the job.

This bill would prohibit, unless based on a bona fide occupational qualification, a person who operates an Internet Web site for posting jobs in this state from publishing on that Internet Web site an advertisement or announcement for any job that includes a provision stating or indicating that an individual’s current employment is a requirement for a job.

This bill would define “employer” to mean the state or any political or civil subdivision of the state and any person who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.

This bill would define “employment agency” to mean any person who, for a fee or other valuable consideration to be paid, directly or indirectly by a jobseeker, performs, offers to perform, or represents it can or will perform employment services, as specified, but would not include any employment counseling service or any job listing service.

This bill would define “employment status” to mean an individual’s present unemployment, regardless of the length of time the individual has been unemployed.

This bill would not preclude an employer, employment agency, or a person who operates an Internet Web site for posting jobs in this state, or an agent, representative, or designee of that employer, employment agency, or Internet Web site, from:

• publishing in print, on the Internet or in any other medium, an advertisement or announcement for any job that contains any provision setting forth qualifications for a job, including: (1) holding a current and valid professional or occupational license, certificate, registration, permit, or other credential; (2) requiring a minimum level of education or training or professional, occupational, or field experience; and (3) stating that only individuals who are current employees of the employer will be considered for that job;

• setting forth qualifications for any job or publishing in print, on the Internet or in any other medium, an advertisement or announcement for any job that contains any provision setting forth qualifications for a job, including: (1) holding a current and valid professional or occupational license, certificate, registration, permit, or other credential; (2) requiring a minimum level of education or training or professional, occupational, or field experience; and (3) stating that only individuals who are current employees of the employer will be considered for that job;

• obtaining information regarding an individual’s employment, including recent relevant experience;

• having knowledge of a person’s employment status;

• inquiring as to the reasons for an individual’s employment status;

• refuse to offer employment to a person because of the reasons underlying an individual’s employment status; and

• otherwise making employment decisions pertaining to that individual.

This bill would prohibit an employer, an employment agency, or a person operating an Internet Web site for posting jobs from doing either of the following:

• interfering with, restraining, or denying the exercise of, or the attempt to exercise, any right provided under this bill; and

• discriminating against any individual because the individual: (1) opposed any practice made unlawful; (2) has instituted, or caused to be instituted, any proceeding; (3) has provided, or is about to provide, any information in connection with any inquiry or proceeding relating to any right provided; or (4) has testified, or is about to testify, in any inquiry or proceeding relating to any right under this bill.

This bill would authorize an individual aggrieved by a violation to file a complaint with the Labor Commissioner, who would be authorized to impose a civil penalty against any employer, employment agency, or person operating an Internet Web site for posting jobs that the commissioner finds to be in violation.

This bill would specify that an employer, employment agency, or person operating an Internet Web site for posting jobs in violation would be subject to a civil penalty of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

This bill would provide that it does not create or authorize a private right of action for a violation of its provisions.

This bill would become operative on July 1, 2016.

COMMENT

1. Stated need for the bill

The author writes:

Research shows that the long-term unemployed are frequently overlooked and sometimes excluded from job opportunities. Employers and employment agencies have posted job vacancy notifications with language such as “No unemployed candidates considered at all” or “Only currently employed candidates will be considered.”

The National Employment Law Project [(NELP)] has found that the “falling unemployment rate and improving economic conditions are not translating into adequate job opportunities for millions of long-term unemployed job seekers.” A study found that long-term unemployed workers with otherwise identical resumes were called back for interviews at rates 45 [percent] lower than the short-term unemployed.

Also, employers are disinclined to hire even well-qualified job applicants who have been out of work for six months or longer. Three Princeton economists found that only 11 [percent] of those unemployed for more than 6 months will ever regain steady full-time work.

California Statistics: 40.5 [percent] of the unemployed in CA have been out of work for 27 weeks or longer. 214,800 people in California lost their unemployment benefits on December 28, 2013 when the federal unemployment benefits lapsed and 836,100 will lose access to benefits through 2014.

AB 676 will make sure that the unemployed are not unfairly discriminated against and provide opportunities for unemployed Californians to at least get their foot in the door and prove to employers they are qualified and a good candidate for the job.

AB 676 would prevent employers, including state and local agencies, or employment agencies from affirmatively asking an applicant for employment to disclose information concerning employment status until the employer or employment agency has determined that the applicant meets the minimum employment qualifications for the position.

The bill will also prohibit an employer, employment agency, or person who operates [an] Internet Web Site for posting jobs in this state from publishing a job announcement or advertisement containing a provision stating or indicating that an individual’s current employment is a requirement for the job, unless based on a bona fide occupational qualification.

2. Discrimination protection for unemployed job seekers

As discussed during the February 26, 2011, public hearing held by the Equal Employment Opportunity Commission (EEOC), there is an emerging practice across the country of excluding unemployed people from applicant pools. (See Background.) This bill seeks to address this problem by prohibiting an employer, an employment agency, or a person operating an Internet Web site for posting jobs in this state from discriminating against a job applicant on the basis of the applicant’s employment status.

Under federal law, Title VII covers all public and private employers with 15 or more employees, and prohibits employment discrimination based on race, color, religion, sex, or national origin, and applies to all aspects of the employment relationship, including hiring, compensation, training, benefits, working conditions, discipline, promotion, and termination. California law provides more expansive antidiscrimination protections for employees under the Fair Employment and Housing Act (FEHA), which prohibits discrimination in employment on the basis of 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. (Gov. Code Sec. 12940 et seq.)

Instead of adding employment status to the list of antidiscrimination protections provided in FEHA, this bill would create separate discrimination prohibitions for employment status. Although employees would not have the more expansive level of protections and enforcement provisions that are provided under FEHA, this bill would protect unemployed individuals from discrimination while acknowledging an employer’s need to verify an individual’s employment history as well as the reasons for why he or she is unemployed. Further, the modest provisions of this bill are appropriate because most employers consider this type of discrimination to be unnecessary and would continue to refrain from engaging in such discrimination.

The California Labor Federation, AFL-CIO, in support, writes:

The lingering economic downturn presents unemployed workers with a wide variety of unique challenges: our unemployment rate hovers at over 6.7 [percent] – though the actual percentage of workers unemployed and underemployed is much larger – and those without jobs have found themselves idled for historic lengths of time. From 3 workers fighting over every available job to the shifting demands of today’s economy, it has never been harder to find stable, reliable work.

In addition, this most recent recession gave 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. . . .

AB 676 will help end this discrimination, whether in advertisements or through hiring policies. Employers will be prohibited from inquiring about employment status before assessing an applicant’s qualifications, though 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.

This bill would limit an individual’s remedies against an employer, employment agency, or person operating a job posting Web site to an administrative procedure in which the individual would file a complaint with the Labor Commissioner. The Labor Commissioner would then be authorized to impose civil penalties based on the three-tier scheme created in this bill. Unlike AB 1450, which would have created a private right of action against the violating party, this bill would specifically prohibit a private right of action. Also unlike AB 1450, which would have required an employer who contracts with a state agency to comply with the bill and would have created a breach of contract and grounds for contract termination for the employer’s failure to comply, this bill does not include contractors with the state or provide for contract termination with the contractor who fails to comply.

3. Governor Brown’s vetoes of AB 1450 and AB 2271

This bill is similar to the enrolled version of AB 1450 (Allen, 2012). In vetoing AB 1450, Governor Brown stated:

This measure seeks to prevent discrimination against the unemployed based on their job status by prohibiting employers from stating in employment ads that applicants must be employed. Unfortunately, as this measure went through the legislative process it was changed in a way that could lead to unnecessary confusion.

This bill is also substantially similar to the enrolled version of AB 2271 (Calderon, 2014). In vetoing AB 2271, Governor Brown stated:

This bill would prohibit an employer from discriminating against job applicants based on the applicant’s status as unemployed. While I support the intent of this bill, it could impede the state’s efforts to connect unemployed workers to prospective employers as currently drafted. The problems facing our state’s long term unemployed are great. There is no doubt that those Californians want to get back to work and I want to help them get there - unfortunately this bill does not provide the proper path to address this problem.

Support: California Conference Board of the Amalgamated Transit Union; California Conference of Machinists; California Employment Lawyers Association; California Immigrant Policy Center; California Labor Federation, AFL-CIO; California Nurses Association; California Rural Legal Assistance Foundation; California State Firefighters’ Association; California Teamsters Public Affairs Council; Engineers & Scientists of California; Glendale City Employees Association; International Longshore & Warehouse Union; Organization of SMUD Employees; National Association of Social Workers, California Chapter; Professional & Technical Engineers; San Diego County Court Employees Association; San Luis Obispo County Employees Association; Service Employees International Union; UNITE-HERE, AFL-CIO; Utility Workers Union of America

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation:

AB 2271 (Calderon, 2014) See Background, Comments 2, 3.

AB 1450 (Allen, 2012) See Background, Comments 2, 3.

Prior Vote:

Senate Labor and Industrial Relations Committee (Ayes 4, Noes 1)

Assembly Floor (Ayes 51, Noes 27)

Assembly Appropriations Committee (Ayes 12, Noes 5)

Assembly Labor and Employment Committee (Ayes 5, Noes 1)

**************

SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS

Senator Tony Mendoza, Chair

2015 - 2016 Regular

Bill No: AB 676 Hearing Date: June 24, 2015

Subject: Employment: discrimination: status as unemployed

KEY ISSUE

Should legislation be enacted making it unlawful for an employer to discriminate against an unemployed individual who applies for employment?

Should it be illegal for an employer, employment agency, or person operating an Internet job posting website to advertise or announce, in job postings, any provisions stating or indicating that an individual’s current employment is a requirement for the job?

ANALYSIS

Existing federal and state law contains provisions that define unlawful discrimination and lawful employment practices by employers and employment agencies to protect both prospective and current employees against employment discrimination. The existing Fair Employment and Housing Act (FEHA) prohibits harassment and discrimination in employment because of, among other things, race, color, religion, sex, sexual orientation, marital status, mental and physical disability, age and/or retaliation for protesting illegal discrimination related to one of these categories or for reporting patient abuse in tax supported institutions. (Government Code §12940, 12945, 12945.2)

Existing law prohibits employers from discriminating, discharging or refusing to hire an employee based on an employee’s lawful conduct during nonworking hours away from the employer’s premises. (Labor Code §96 & 98.6)

This Bill would enact various provisions of law related to discrimination against an applicant for employment based on his or her current employment status, as specified.

Specifically, this bill would:

1. Define "employment status" to mean an individual's present unemployment, regardless of length of time that the individual has been unemployed.
   
   

2. Prohibit an employer, unless based on a bona fide occupational qualification, from doing either of the following:
   
   

   1. Publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a job requirement.
      
      

   2. Affirmatively asking an applicant for employment to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.
      
      

3. Prohibit an employment agency, unless based on a bona fide occupational qualification, from doing any of the following:
   
   

   1. Publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a job requirement.
      
      

   2. Limiting, segregating, or classifying an individual in any manner that may limit his/her access to information about jobs or referrals for consideration of jobs because of the individual's employment status.
      
      

   3. Affirmatively asking an applicant for employment to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.
      
      

4. Prohibit a person who operates a job posting website, unless based on a bona fide occupational qualification, from publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a requirement for the job.
   
   

5. Provide that this bill does not prohibit an employer, employment agency, or person operating a job posting website from doing the following:
   
   

   1. Publishing an advertisement or announcement for any job that contains any provision setting forth qualifications for a job, including:

      1. Holding professional or occupational license, certificate, permit or credential;

      2. Requiring a minimum level of education or training or experience;

      3. Stating that only current employees of the employer will be considered.
         
         

   2. Obtaining information regarding employment, including recent relevant experience.
      
      

   3. Having knowledge of a person's employment status.
      
      

   4. Inquiring as to the reasons for an individual's employment status.
      
      

   5. Refusing to offer employment to a person because of the reasons underlying an individual's employment status.
      
      

   6. Otherwise making employment decisions pertaining to that individual.
      
      

6. Prohibit an employer, employment agency, or person operating a job posting website from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any rights provided under this bill, or discriminating against an individual because the individual has engaged in specified activities.
   
   

7. Authorize an individual aggrieved by a violation of these provisions to file a complaint with the Labor Commissioner who may impose a civil penalty against the employer of $1,000 for a first violation, $5,000 for a second, and $10,000 for each subsequent violation.

COMMENTS

1. “Unemployed Need Not Apply”: Background on the Issue

The nation has suffered from a severe unemployment crisis that has affected nearly all sectors of the economy. According to the National Employment Law Project, around 9.8 million workers were unemployed in May 2014, and 3.4 million, or 34.6 percent, of those workers were searching for work for six months or more. In the summer of 2010, news accounts began to emerge throughout the country suggesting that some employers were establishing blanket exclusions of unemployed workers from job consideration using terms like “must be currently employed” or “require current (or very recent) tenure,” as part of the qualifications for employment. One of the first stories reported, in May 2010, involved accounts by media in Atlanta reporting that Sony Ericsson's newly relocated headquarters had posted a job announcement for a marketing position that explicitly stated, "No Unemployed Candidates Considered At All."

Subsequently, in early 2011, the National Employment Law Project (NELP) conducted a four-week review of the nation's most prominent online job listing websites. NELP's research of job postings identified more than 150 ads that included exclusions based on current employment status. (Briefing Paper: Hiring Discrimination against the Unemployed, National Employment Law Project, July 12, 2011) Most of the ads specifically stated that applicants "must be currently employed."

2. White House Report: Addressing the Negative Cycle of Long-Term Unemployment

In January 2014, the White House released a report, “Addressing the Negative Cycle of Long-Term Unemployment,” which explored the challenge of long-term unemployment, something it called "the worst legacy of the Great Recession." Among other things, the report found that, although the long and short-term unemployed have similar credentials overall, research suggests that the long-term unemployed face significant disadvantages in the labor market simply by virtue of their status as being long-term unemployed.

Specifically, the report made the following findings:

• The long-term unemployed are about half as likely as the short-term unemployed to get a callback. Interview “callback” rate for otherwise identical resumes falls sharply as the length of unemployment rises, with callbacks 45 percent lower for those unemployed for eight months compared to those unemployed for just one month.

• To land an interview, the long-term unemployed must apply to 3.5 times as many jobs as the short-term unemployed. Applicants unemployed for seven months need to send an average of 35 resumes to online job postings to receive just one interview, compared to just 10 resumes per interview for those unemployed for only one month.

• Employers may be screening out applicants based on duration of unemployment, and missing the more qualified applicants. Long-term unemployed workers with relevant work experience are less likely to be invited for an interview than recently unemployed job applicants with no relevant experience.

In response to these findings, the Administration announced the following initiatives:

• New Best Practices for Hiring and Recruiting Long-Term Unemployed: Administration has engaged with America’s leading businesses to develop best practices for hiring and recruiting the long-term unemployed and ensure they receive a fair shot during hiring. Over 80 of the nation’s largest businesses have signed on as well as many small- and medium-sized businesses.
  
  

• Presidential Memorandum to Make Sure the Federal Government Does the Same: The

President will also lead by example to make sure that individuals who are unemployed or have faced financial difficulties through no fault of their own receive fair treatment and consideration for employment by federal agencies.

• Fund programs that help find employment: The Department of Labor is seeking to fund

new programs that build on models that have shown success in helping the long-term unemployed find employment through innovative partnerships and proven strategies, including job-training, subsidized employment, and sector-based strategies.

3. Need for this bill?

Existing law authorizes employers to conduct an investigation, such as a background check, into an individual’s character for employment purposes, as specified. Existing law also prohibits harassment and discrimination in employment because of race, color, religion, sex and sexual orientation, among others. However, nothing specifically addresses the issue of discriminating against the unemployed.

Significant media attention has focused on reports that some employers are refusing to consider applicants for employment unless those individuals are currently employed in other jobs (thereby excluding from consideration those applicants who are currently unemployed). Many advocates and policymakers have referred to this phenomenon as "discrimination against the unemployed" and have argued that it is not only improper towards those who have suffered the misfortune of a layoff, but also exacerbates the downturn by keeping qualified applicants out of the job market. According to the author, in December 2014 the unemployment rate was recorded at 7.1 % and in January 2015 the duration of unemployment lasting 27 weeks or longer was recorded to have reached 2,800 individuals. This bill attempts to ban such a practice under state law by prohibiting employers from discriminating against prospective job applicants on the basis of his/her employment status.

4. Similar Efforts in Other States:

Similar efforts have been attempted in other states. The State of New Jersey became the first to enact a law effective in 2011. (New Jersey Statutes, Title 34, Chapter 8 B Sections 1-2-C.348B-1) The NJ statute prohibits an employer from publishing a job posting that states any of the following: (1) current employment is a job qualification; (2) currently unemployed candidates will not be considered; or (3) only currently employed job applicants will be considered. According to the National Conference of State Legislatures, in 2012 both Oregon and the District of Columbia passed a law prohibiting discrimination against the unemployed. In 2013, nine other states had introduced hiring discrimination bills.

5. Proponent Arguments:

According to the author, research shows that the long-term unemployed are frequently overlooked and sometimes excluded from job opportunities. Employers and employment agencies have posted job vacancy notifications with language such as “No unemployed candidates considered at all” or “Only currently employed candidates will be considered.” Proponents argue that the long-term unemployed are some of California’s most in-need individuals whose harm is compounded when their attempts to re-enter the work force are thwarted by this type of discrimination. They cite a study which found that long-term unemployed workers with otherwise identical resumes were called back for interviews at rates 45% lower than the short-term unemployed.

Proponents support the measure which seeks to prevent employers from affirmatively asking an applicant for employment to disclose information concerning employment status until the employer or employment agency has determined that the applicant meets the minimum employment qualifications for the position. They believe that this bill will level the playing field for the long-term unemployed and allow a person’s credentials and qualifications to speak first, rather than their status as an unemployed individual.

6. Opponent Arguments:

None received.

7. Double Referral:

This bill has been double referred to this Committee and the Senate Judiciary Committee. Should the bill be approved today, it will be sent to Senate Judiciary for a hearing.

8. Prior and Related Legislation:

AB 2271 (Calderon) of 2014: Vetoed by the Governor

AB 2271 was nearly identical to this bill and was vetoed by the Governor. Below is the Governor’s veto message to AB 2271.

"This bill would prohibit an employer from discriminating against job applicants based on the applicant's status as unemployed. While I support the intent of this bill, it could impede the state's efforts to connect unemployed workers to prospective employers as currently drafted. The problems facing our state's long term unemployed are great. There is no doubt that those Californians want to get back to work and I want to help them get there - unfortunately this bill does not provide the proper path to address this problem."

AB 1450 (Allen) of 2012: Vetoed by the Governor

This bill is similar, but not identical, to AB 1450 from 2012. This bill differs in that it merely prohibits an employer from asking an applicant to disclose information concerning his/her current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.

AB 218(Dickinson) of 2013: Chaptered

AB 218 prohibits a state or local agency from asking an applicant for employment to disclose information concerning the conviction history of the applicant, including any inquiry about conviction history on any employment application, until the agency has determined the applicant meets the minimum employment qualifications, as specified.

SUPPORT

CA Conference Board of the Amalgamated Transit Union

CA Conference of Machinists

California Employment Lawyers Association

California Labor Federation, AFL-CIO

California Nurses Association

California State Firefighters’ Association

California Teamsters Public Affairs Council

Engineers & Scientists of California

Glendale City Employees Association

International Longshore & Warehouse Union

National Association of Social Workers, CA Chapter

Organization of SMUD Employees

Professional & Technical Engineers

San Bernardino Public Employees Association

San Diego County Court Employees Association

Service Employees International Union

San Luis Obispo County Employees Association

UNITE-HERE, AFL-CIO

Utility Workers Union of America

OPPOSITION

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 676

Author:(Calderon)

As Introduced Ver:February 25, 2015

Majority vote

SUMMARY: Enacts various provisions of law related to discrimination based on an individual's employment status (present unemployment). Specifically, this bill:

1. Defines "employment status" to mean an individual's present unemployment, regardless of length of time that the individual has been unemployed.

2. Prohibits an employer, unless based on a bona fide occupational qualification, from doing either of the following:

   1. Publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a requirement for the job.

   2. Affirmatively asking an applicant for employment to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.

3. Prohibits an employment agency, unless based on a bona fide occupational qualification, from doing any of the following:

   1. Publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a requirement for the job.

   2. Limiting, segregating, or classifying an individual in any manner that may limit that individual's access to information about jobs or referrals for consideration of jobs because of the individual's employment status.

   3. Affirmatively asking an applicant for employment to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.

4. Prohibits a person who operates a job posting Web site, unless based on a bona fide occupational qualification, from publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a requirement for the job.

5. Provides that this bill does not prohibit an employer, employment agency, or person operating a job posting Web site from doing the following:

   1. Publishing an advertisement or announcement for any job that contains any provision setting forth qualifications for a job, as specified, including that only individuals who are current employees of the employer will be considered for the job.

   2. Setting forth qualifications for any job, as specified.

   3. Obtaining information regarding an individual's employment, including recent relevant experience.

   4. Having knowledge of a person's employment status.

   5. Inquiring as to the reasons for an individual's employment status.

   6. Refusing to offer employment to a person because of the reasons underlying an individual's employment status.

   7. Otherwise making employment decisions pertaining to that individual.

6. Prohibits an employer, employment agency, or person operating a job posting Web site from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any rights provided under this bill, or discriminating against an individual because the individual has engaged in specified activities.

7. Authorizes an individual aggrieved by a violation of this bill to file a complaint with the Labor Commissioner.

8. Establishes civil penalties of $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation.

FISCAL EFFECT: According to the Assembly Appropriations Committee, administrative costs to the Department of Labor Standards Enforcement, potentially in the range of $1 million to $3 million (special funds), to process, review, and investigate complaints.

Predicting the number and nature of the claims that may come before the Division of Labor Standards Enforcement (DLSE) is difficult. According to data from the Employment Development Department, as of February, there are approximately 1.2 million unemployed workers in California. According to DLSE, cases involving retaliation often involve lengthy, resource intensive investigations. This bill also expands DLSE enforcement authority to include 3rd party internet website providers. This is a new addition to the DLSE statutory framework and associated costs are difficult to determine. Further, this bill prohibits a private right of action, meaning all complaints would come before DLSE

COMMENTS: According to the author, research shows that the long-term unemployed are frequently overlooked and sometimes excluded from job opportunities. Employers and employment agencies have posted job vacancy notifications with language such as "No unemployed candidates considered at all" or "Only currently employed candidates will be considered."

Employers are disinclined to hire even well-qualified job applicants who have been out of work for six months or longer. Three Princeton economists found that only 11% of those unemployed for more than six months will ever regain steady full-time work.

Therefore, the author states that this bill would seek to prevent employers, including the state and local agencies, or employment agencies from affirmatively asking an applicant for employment to disclose information concerning employment status until the employer or employment agency has determined that the applicant meets the minimum employment qualifications for the position.

This bill will prohibit an employer, employment agency, or person who operates on an Internet Web site for posting jobs in this state from publishing a job announcement or advertisement containing a provision stating or indicating that an individual's current employment is a requirement for the job, unless based on a bona fide occupational qualification.

AB 2271 (Calderon) of 2014, which was nearly identical to this bill, was vetoed by Governor Brown.

Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0000796

Date of Hearing: April 22, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 676

Author:(Calderon) – As Introduced Ver:February 25, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY: This bill prohibits, starting July 1, 2016, an employer, an employment agency, or a person who operates an Internet Web site for posting jobs from publishing an advertisement or announcement for a job that indicates current employment is a requirement, unless this is based on a bona fide occupational qualification. Specifically, this bill:

1. Prohibits an employer or an employment agency from affirmatively asking an applicant to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.

2. Prohibits an employment agency, unless based on a bona fide occupational qualification, from limiting, segregating, or classifying an individual in any manner that may limit that individual's access to information about jobs or referrals for consideration of jobs because of the individual's employment status.

3. Prohibits an employer, employment agency, or person operating a job posting website from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any rights provided under this bill, or discriminating against an individual because the individual has engaged in specified activities.
   
   

4. Authorizes an individual aggrieved by a violation of this bill to file a complaint with the Labor Commissioner.
   
   

5. Establishes civil penalties of $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation.

6. Specifies this bill does not create or authorize a private right of action.

7. Defines "employment status" to mean an individual's present unemployment, regardless of length of time that the individual has been unemployed.

FISCAL EFFECT: Administrative costs to the Department of Labor Standards Enforcement, potentially in the range of $1 million to $3 million (special funds), to process, review, and investigate complaints.

Predicting the number and nature of the claims that may come before the DLSE is difficult. According to data from the Employment Development Department, as of February, there are approximately 1.2 million unemployed workers in California. According to DLSE, cases involving retaliation often involve lengthy, resource intensive investigations.  This bill also expands DLSE enforcement authority to include 3rd party internet website providers. This is a new addition to the DLSE statutory framework and associated costs are difficult to determine.  Further, this bill prohibits a private right of action, meaning all complaints would come before DLSE.  

COMMENTS:

1. Purpose. Over the last several years, significant media attention has focused on reports that some employers are refusing to consider applicants for employment unless those individuals are currently employed in other jobs. Further, research conducted by the National Employment Law Project (NELP) in 2011 identified more than 150 ads that included exclusions based on current employment status. This bill seeks to address discrimination against the unemployed by prohibiting current employment as a requirement, unless based on a bona fide occupational qualification.

2. Prior legislation. This bill is

nearly identical to AB 2271 (Calderon) of 2014, vetoed by Governor Brown. The veto message reads as follows:

"This bill would prohibit an employer from discriminating against job applicants based on the applicant's status as unemployed. While I support the intent of this bill, it could impede the state's efforts to connect unemployed workers to prospective employers as currently drafted. The problems facing our state's long term unemployed are great. There is no doubt that those Californians want to get back to work and I want to help them get there - unfortunately this bill does not provide the proper path to address this problem."

Analysis Prepared by: Misty Feusahrens / APPR. / (916) 319-2081

Date of Hearing: April 8, 2015

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Roger Hernández, Chair

ABPCA Bill Id:AB 676

Author:(Calderon) – As Introduced Ver:February 25, 2015

SUBJECT: Employment: discrimination: status as unemployed

SUMMARY: Enacts various provisions of law related to discrimination based on an individual's employment status (present unemployment). Specifically, this bill:

1. Defines "employment status" to mean an individual's present unemployment, regardless of length of time that the individual has been unemployed.
   
   

2. Prohibits an employer, unless based on a bona fide occupational qualification, from doing either of the following:
   
   

   1. Publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a requirement for the job.
      
      

   2. Affirmatively asking an applicant for employment to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.
      
      

3. Prohibits an employment agency, unless based on a bona fide occupational qualification, from doing any of the following:
   
   

   1. Publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a requirement for the job.
      
      

   2. Limiting, segregating, or classifying an individual in any manner that may limit that individual's access to information about jobs or referrals for consideration of jobs because of the individual's employment status.
      
      

   3. Affirmatively asking an applicant for employment to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position.
      
      

4. Prohibits a person who operates a job posting website, unless based on a bona fide occupational qualification, from publishing an advertisement or announcement for any job that includes a provision stating or indicating that an individual's current employment is a requirement for the job.
   
   

5. Provides that this bill does not prohibit an employer, employment agency, or person operating a job posting website from doing the following:
   
   

1. Publishing an advertisement or announcement for any job that contains any provision setting forth qualifications for a job, as specified, including that only individuals who are current employees of the employer will be considered for the job.
   
   

2. Setting forth qualifications for any job, as specified.
   
   

3. Obtaining information regarding an individual's employment, including recent relevant experience.
   
   

4. Having knowledge of a person's employment status.
   
   

5. Inquiring as to the reasons for an individual's employment status.
   
   

6. Refusing to offer employment to a person because of the reasons underlying an individual's employment status.
   
   

7. Otherwise making employment decisions pertaining to that individual.
   
   

1. Prohibits an employer, employment agency, or person operating a job posting website from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any rights provided under this bill, or discriminating against an individual because the individual has engaged in specified activities.
   
   

2. Authorizes an individual aggrieved by a violation of this bill to file a complaint with the Labor Commissioner.
   
   

3. Establishes civil penalties of $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation.

FISCAL EFFECT: Unknown

COMMENTS: Over the last several years, significant media attention has focused on reports that some employers are refusing to consider applicants for employment unless those individuals are currently employed in other jobs (thereby excluding from consideration those applicants who are currently unemployed). Many advocates and policymakers have referred to this phenomenon as "discrimination against the unemployed."

"Unemployed Need Not Apply"

In the summer of 2010, news accounts began to emerge suggesting that some employers were establishing a blanket exclusion of unemployed workers from job consideration. One of the first stories involved a report by media in Atlanta that Sony Ericsson's newly relocated headquarters had posted a job announcement that explicitly stated, "No Unemployed Candidates Considered At All."

Subsequently, in early 2011 the National Employment Law Project (NELP) conducted a four-week review of the nation's most prominent online job listing websites. The online research sought information on both employers and staffing firms that were specifically identified by name from across the United States.

NELP's research of job postings identified more than 150 ads that included exclusions based on current employment status¹. Most of the ads specifically stated that applicants "must be currently employed."

In June 2011, a national survey conducted by Hart Research Associates indicated that 80 percent of respondents described the refusal to consider unemployed job applicants as "very unfair." Nearly two-thirds of respondents said they favored federal legislation to make "it illegal for companies to refuse to hire or consider a qualified job applicant solely because the person is currently unemployed²."

Do Such Policies Exacerbate The Unemployment Crisis?

Advocates have argued that employer policies that preclude consideration of the unemployed in hiring are not only fundamentally unfair, they also reflect insensitivity to today's severe jobs deficit:

"By any measure, the nation is suffering from a severe unemployment crisis, cutting across nearly all sectors of the economy. High unemployment has persisted for three years, with the national unemployment rate hovering around 9 percent for more than two years and edging up to 9.2 percent in June 2011. Millions have been out of work for significantly longer than in any other recession on record: nearly 6.3 million unemployed workers have been out of work for six months or longer, and the average spell of unemployment has risen, reaching nearly 40 weeks, or more than nine months, as of June 2011.

Our ongoing unemployment crisis is not the result of unwillingness to work on the part of the unemployed, or a mismatch between available jobs and skills of job seekers. At the core of the crisis is the fact that there simply are not enough jobs. Our current jobs deficit exceeds 11 million jobs, taking into account the net number of jobs lost since December 2007 and the additional new jobs that were needed simply to keep up with population growth. As one small measure of the intense competition for jobs resulting from this deficit, the ratio of unemployed workers (that is, individuals who are without jobs and are actively looking for work) to the number of new job openings (net) is alarmingly high. The most recent figures available show that during the month of May 2011, there were more than nearly five unemployed workers for every one job opening—the exact ratio stood at 4.7-to-13. May 2011 marked the 29th consecutive month during which there was only one opening for at least every four unemployed workers.

By comparison, at the start of the Great Recession in December 2007, there were less than two unemployed workers for every opening. Even during the prior 2001 recession and its aftermath, the ratio of unemployed to job openings peaked at 2.8-to-1—a level surpassed less than a year into the current downturn.

Competition for jobs is stiff in every part of the country, with unemployed workers outnumbering available job openings by nearly four-to-one or more in every region. In the West, the demand for scarce jobs is even greater, with five or more unemployed workers for every opening as of May; the South is not far behind. The ratio of unemployed workers to job openings has roughly doubled in every region and at the national level since the start of the Great Recession, and in the South and West, it has roughly tripled.

Taken together, the lack of available job openings and the denial of employment opportunities that do exist create stark obstacles for more than 14 million unemployed who simply want to get back to work³."

Recent White House Report on the Long-Term Unemployment Crisis

In January 2014, the White House released a report⁴ which explored the challenge of long-term unemployment, something it called "the worst legacy of the Great Recession."

Among other things, the report found that, although the long- and short-term unemployed have similar credentials overall, research suggests that the long-term unemployed face significant disadvantages in the labor market simply by virtue of their status as being long-term unemployed.

Specifically, the report made the following findings:

• The long-term unemployed are about half as likely as the short-term unemployed to get a callback. Interview “callback” rate for otherwise identical resumes falls sharply as the length of unemployment rises, with callbacks 45 percent lower for those unemployed for eight months compared to those unemployed for just one month.

• To land an interview, the long-term unemployed must apply to 3.5 times as many jobs as the short-term unemployed. Applicants unemployed for seven months need to send an average of 35 resumes to online job postings to receive just one interview, compared to just 10 resumes per interview for those unemployed for only one month.

• Employers may be screening out applicants based on duration of unemployment, and missing the more qualified applicants. Long-term unemployed workers with relevant work experience are less likely to be invited for an interview than recently unemployed job applicants with no relevant experience.

Therefore, the Administration announced the following initiatives:

• "New Best Practices for Hiring and Recruiting the Long-Term Unemployed. As part of an ongoing effort that began several months ago, the Administration has engaged with America’s leading businesses to develop best practices for hiring and recruiting the long-term unemployed to ensure that these candidates receive a fair shot during the hiring process. Over 80 of the nation’s largest businesses have signed on, including 20 members of the Fortune 50 and over 45 members of the Fortune 200, as well as over 200 small- and medium-sized businesses.
  
  

• Presidential Memorandum to Make Sure the Federal Government Does the Same. The President will also lead by example and use his executive authority to sign a Presidential Memorandum to make sure that individuals who are unemployed or have faced financial difficulties through no fault of their own receive fair treatment and consideration for employment by federal agencies."⁵

ARGUMENTS IN SUPPORT:

According to the author, research shows that the long-term unemployed are frequently overlooked and sometimes excluded from job opportunities. Employers and employment agencies have posted job vacancy notifications with language such as “No unemployed candidates considered at all” or “Only currently employed candidates will be considered.”

Employers are disinclined to hire even well-qualified job applicants who have been out of work for six months or longer. Three Princeton economists found that only 11 percent of those unemployed for more than 6 months will ever regain steady full-time work.

Therefore, the author states that this bill would seek to prevent employers, including the state and local agencies, or employment agencies from affirmatively asking an applicant for employment to disclose information concerning employment status until the employer or employment agency has determined that the applicant meets the minimum employment qualifications for the position.

The bill will prohibit an employer, employment agency, or person who operates on Internet Web Site for posting jobs in this state from publishing a job announcement or advertisement containing a provision stating or indicating that an individual’s current employment is a requirement for the job, unless based on a bona fide occupational qualification.

PRIOR RELATED LEGISLATION:

AB 2271 (Calderon) of 2014, nearly identical to this bill was vetoed by the Governor on the grounds that it could impede the state’s efforts to connect unemployed workers to prospective employers as it was then drafted. Below is the Governor’s veto message to AB 2271.

"This bill would prohibit an employer from discriminating against job applicants based on the applicant's status as unemployed. While I support the intent of this bill, it could impede the state's efforts to connect unemployed workers to prospective employers as currently drafted. The problems facing our state's long term unemployed are great. There is no doubt that those Californians want to get back to work and I want to help them get there - unfortunately this bill does not provide the proper path to address this problem."

This bill is similar, but not identical, to AB 1450 (Allen) from 2012. As introduced, AB 1450 would have, among other things, prohibited an employer with 15 or more employees from refusing to consider an individual or offer employment because of the individual's employment status.

This bill differs from AB 1450 in that it merely prohibits an employer from affirmatively asking an applicant for employment to disclose information concerning the applicant's current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position. This approach is more consistent with recent efforts on "ban the box" legislation related to employment applicants with criminal histories. For example, AB 218 (Dickinson) enacted in 2013 prohibits a state or local agency from asking an applicant for employment to disclose information concerning the conviction history of the applicant, including any inquiry about conviction history on any employment application, until the agency has determined the applicant meets the minimum employment qualifications, as stated in any notice issued for the position.

AB 1450 was subsequently amended to delete provisions of the bill related to hiring decisions and offers of employment and instead merely prohibited job advertisements or announcements that stated or indicated that an individual's current employment is a requirement for a job. AB 1450 was vetoed by Governor Brown, who stated the following in his veto message:

"This measure seeks to prevent discrimination against the unemployed based on their job status by prohibiting employers from stating in employment ads that applicants must be employed. Unfortunately, as this measure went through the legislative process it was changed in a way that could lead to unnecessary confusion."

REGISTERED SUPPORT / OPPOSITION:

Support

CA Conference Board of the Amalgamated Transit Union

CA Conference of Machinists

California Employment Lawyers Association

California Immigrant Policy Center

California Labor Federation, AFL-CIO

California Nurses Association

California Rural Legal Assistance Foundation

California Teamsters Public Affairs Council

Engineers & Scientists of California

International Longshore & Warehouse Union

National Association of Social Workers, CA Chapter

Professional & Technical Engineers

UNITE-HERE

Utility Workers Union of America

Opposition

None on file.

Analysis Prepared by: Christopher Martin/ Ben Ebbink / L. & E. / (916) 319-2091