HomeMy WebLinkAboutAB 1450 - Allen - Employment AdvertisingCITY OF PALM DESERT
OFFICE OF THE CITY MANAGER
STAFF REPORT
REQUEST: APPROVE THE PALM DESERT LEGISLATIVE REVIEW
COMMITTEE'S RECOMMENDATION TO PROVIDE A LETTER
OF OPPOSITION FOR AB-1450 (ALLEN).
SUBMITTED BY: Stephen Y. Aryan, Risk Manager
DATE: May 10, 2012
CONTENTS: AB 1450 Bill Text
Recommendation
By Minute Motion, approve the recommended letter of Opposition for AB 1450
(Allen)
Committee Recommendation
On April 27, 2012, the Palm Desert Legislative Review Committee recommended that the
City Council approve a letter of opposition for AB 1450 (ALLEN).
Background
AB 1450 (Allen) would make it unlawful, unless based on a bona fide occupational
qualification or any other provision of law, for an employer, an employment agency, or a
person who operates an Internet Web site for posting jobs in this state to take specified
employment actions relating to employment status, as defined, including, among other
things, refusing to hire a person because of that person's employment status and publishing
an advertisement or announcement for any job that includes provisions pertaining to an
individual's current employment or employment status, as specified.
This 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 increase as the number of violations increase.
AB 1450 prohibits employers from considering an applicant's current "employment status"
when hiring for an available position, unless such status satisfies a "bona fide occupational"
requirement. Despite the fact that the bill states it does not prohibit an employer from
conducting a review of the applicant's employment status or the reasons for any separation
of employment, AB 1450 will essentially do just that.
In order to avoid accidentally exposing an applicant's current status as "unemployed" during
the application process, employers will ultimately be barred from: (1) asking for information
regarding the applicant's most recent employer; (2) the dates of employment with the most
AB 1450: Opposition Letter
May 10, 2012
Page 2 of 2
recent employer; or (3) reasons for the separation of employment with the most recent
employer. Any of these legitimate inquiries could reveal that the applicant is currently
unemployed, thereby subjecting the prospective employer to fees, penalties, and an
administrative claims.
Finally, this bill will not affect the unemployment rate. If there is an available position, the
employer will ultimately hire someone. The only thing AB 1450 does is instruct a private
employer on who they can and cannot hire, which staff believes is inappropriate. The ability
to determine which candidate is the most qualified for an available position is an
independent decision that should be left to the employer, not state government. Staff
recommends sending a letter of opposition for this bill to the appropriate state legislative
representatives.
Fiscal Analysis
There is no direct fiscal impact of this bill to the City. However, the City could be subject to
fees, penalties, and administrative claims if found in violation of its provisions.
Submitted By:
StepheA Y
Approval:
, Risky Marj6ger
Paul S. Gibson, Director of Finance
C
Jon M. Wohlmuth, City Manager
CITY COUNCIL ACTION
APPROVEDDENIED
RECEIVED O"ITIER
MEETING DATE
AYES:
NOES:-
AlN NT: 1v�nG -
ABSTAIN: _ L Grp
VERIFIED I3V.............
I IK r1q, --_
Original on File with City Clcrlc's O fif' c
Bill Text - AB-1450 Employment: discrimination: status as unemployed. Page 1 of 4
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d LEGISLATIVE INFORMATION
AB-1450 Employment: discrimination: status as unemployed. (2011-2012)
AMENDED IN ASSEMBLY APRIL 25, 2012
AMENDED IN ASSEMBLY MARCH 14,2012
CALIFORNIA LEGISLATURE— 2011-2012 REGULAR SESSION
ASSEMBLY BILL
No. 1450
Introduced by Assembly Member Allen
(Principal Coauthor(s): Assembly Member Mendoza, Swanson)
(Coauthor(s): Assembly Member Alejo, Ammiano, Beall, Blumenfield, Fong, Hall, Solorio,
Wieckowski)
January 05, 2012
An act to add Chapter 3.95 (commencing with Section 1045) to Part 3 of Division 2
of the Labor Code, and to add Section 10285.6 to the Public Contract Code, relating
to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1450, as amended, Allen. Employment: discrimination: status as unemployed.
Existing law contains provisions that define unlawful discrimination and employment practices by employers and
employment agencies.
This bill would make it unlawful, unless based on a bona fide occupational qualification or any other provision of
law, for an employer, an employment agency, or a person who operates an Internet Web site for posting jobs in
this state to take specified employment actions relating to employment status, as defined, including, among
other things, refusing to hire a person because of that person's employment status and publishing an
advertisement or announcement for any job that includes provisions pertaining to an individual's current
employment or employment status, as specified.
This 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 increase as the number of
violations increase.
The State Contract Act governs contracting between state agencies and private contractors, and sets forth
requirements for the procurement of materials, supplies, equipment, and services by state agencies.
This bill would provide that failure to comply with the requirements of the bill would constitute a breach of -the a
contract entered into on or after January 1, 2013, and may be grounds for canceling, terminating, or
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Bill Text - AB-1450 Employment: discrimination: status as unemployed. Page 2 of 4
suspending the contract, as specified, and debarring the contractor from eligibility for an award of future state
agency contracts for a period not to exceed 3 years, as specified.
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: no
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 3.95 (commencing with Section 1045) is added to Part 3 of Division 2 of the Labor Code,
to read:
CHAPTER 3.95. Employment Discrimination on the Basis of Employment Status
1045. For purposes of this chapter, the following definitions apply:
(a) "Contractor" means a person who is a party to a contract with a state governmental agency, including any
department, division, subcontractor, or other unit that is responsible for performance under the contract.
"Contractor" does not include a state geyernffien governmental agency.
(b) "Employer" means the state or any political or civil subdivision of the state and any person, as defined in
Section 18, 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.
(c) "Employment agency" has the same meaning as defined in Section 1812.501 of the Civil Code.
(d) "Employment status" means an individual's present unemployment, regardless of the length of time that the
individual has been unemployed.
1046. (a) Unless based on a bona fide occupational qualification, an employer shall not do any of the following:
(1) Refuse to eemsid mple menft Exclude an applicant from the applicant pool at any stage of the hiring
process or refuse to offer employment to an individual because of the individual's employment status.
(2) Publish in print, on the Internet, or in any other medium an advertisement or announcement for any job
that includes either of the following:
(A) A provision stating or indicating that an individual's current employment is a requirement for a job.
(B) A provision stating or indicating that an employer will not consider an applicant for employment based on
that individual's employment status.
(3) Direct or request that an employment agency take an individual's employment status into account in
screening or referring applicants for employment.
(b) Unless based on a bona fide occupational qualification, an employment agency shall not do any of the
following:
(1) Refuse to offer employment to an individual, er te eensider ef exclude an individual from the applicant pool
at any stage of the hiring process, or fail to refer an individual for employment because of the individual's
employment status.
(2) Limit, segregate, or classify individuals in any manner that may limit their access to information about jobs
or referral for consideration of jobs because of their employment status.
(3) Publish in print, on the Internet, or in any other medium an advertisement or announcement for any job
that includes either of the following:
(A) A provision stating or indicating that an individual's current employment is a requirement for a job.
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Bill Text - AB-1450 Employment: discrimination: status as unemployed. Page 3 of 4
(B) A provision stating or indicating that an employer will not consider an applicant for employment based on
that individual's employment status.
(c) Unless based on a bona fide occupational qualification, a person who operates an Internet Web site for
posting jobs in this state shall not publish on that Internet Web site an advertisement or announcement for any
job that includes:
(1) A provision stating or indicating that an individual's current employment is a requirement for a job.
(2) A provision stating or indicating that an employer will not consider an applicant for employment based on
that individual's employment status.
(d) This chapter does not prohibit an employer, an employment agency, or a person operating an Internet Web
site for posting jobs in this state from doing either of the following:
(1) Publishing, in print, on the Internet, or in any other medium, an advertisement or announcement for any
job that sets forth other lawful qualifications for a job, including, but not limited to, the holding of a current and
valid professional or occupational license, certificate, registration, permit, or other credential, or a minimum
level of education or training or professional, occupational, or field experience.
(2) Printing or circulating or causing to be printed or circulated a publication, advertisement, or solicitation for a
job vacancy that contains any provision stating that only applicants who are currently employed by that
employer will be considered.
(e) An employer, an employment agency, or a person operating an Internet Web site for posting jobs in this
state shall not do either of the following:
(1) Interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under this
chapter.
(2) Discriminate against any individual because the individual:
(A) Opposed any practice made unlawful by this chapter.
(B) Has caused to be instituted any proceeding under or related to this chapter.
(C) Has given, or is about to give, any information in connection with any inquiry or proceeding relating to any
right provided under this chapter.
(D) Has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this
chapter.
(f) An employer, an employment agency, or a person operating an Internet Web site for posting jobs in this
state who violates this section shall be subject to a civil penalty in an amount not to exceed one thousand
dollars ($1,000) for the first violation, five thousand dollars ($5,000) for the second violation, and ten thousand
dollars ($10,000) for each subsequent violation, enforceable by the Labor Commissioner pursuant to the
procedures specified in Chapter 4 (commencing with Section 79) of Division 1.
1047. (a) A contract entered into on or after January 1, 2013, between a state agency and a contractor who is
an employer shall include an express or implied requirement that the contractor comply with the requirements
of this chapter. Failure to comply with the requirements of this chapter, as determined by the Labor
Commissioner, pursuant to subdivision (f) of Section 1046, shall constitute a breach of the contract and may be
grounds for canceling, terminating, or suspending the contract, and debarring the contractor from eligibility for
future state agency contracts.
(b) In accordance with regulations adopted by the Division of Labor Standards Enforcement, and upon
determining that a contractor who is an employer has violated this chapter, the Labor Commissioner may, after
consulting with the contracting state agency, do any or all of the following:
(1) Direct the state agency to cancel, terminate, or suspend the contract, or any segregable portion thereof.
(2) Debar the contractor from eligibility for an award of a future state agency contract for a period not to
exceed three years.
internet Web site feF PG9tiHg jebS In this state from eensidering an lfidiyidual's empleyment hiStefy eF kem
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Bill Text - AB-1450 Employment: discrimination: status as unemployed. Page 4 of 4
1048. This chapter does not preclude an employer, an employment agency, or a person who operates an
Internet Web site for posting jobs in this state from doing any of the following:
(a) Obtaining information regarding an individual's employment, the dates of employment, or the reasons for
the separation from employment.
(b) Having knowledge of a person's employment status.
(c) Considering an individual's employment history or the reasons underlying an individual's employment
status.
(d) Refusing to offer employment to a person because of the reasons underlying an individual's employment
status.
(e) Otherwise making employment decisions pertaining to that individual.
SEC. 2. Section 10285.6 is added to the Public Contract Code, to read:
10286.6. A contractor, as defined in Section 1045 of the Labor Code, who has been debarred by the Labor
Commissioner pursuant to Section 1047 of the Labor Code for a period not to exceed three years, shall be
ineligible during that time for an award of a contract pursuant to this chapter.
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