California Assembly Bill AB2271 Amended / Bill

 BILL NUMBER: AB 2271AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 28, 2014 INTRODUCED BY Assembly Member Ian Calderon FEBRUARY 21, 2014 An act to  amend Section 98 of   add Chapter 3.95 (commencing with Section 1045) to Part 3 of Division 2 of  the Labor Code, relating to employment. LEGISLATIVE COUNSEL'S DIGEST AB 2271, as amended, Ian Calderon. Employment:  employee complaints.   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 publish 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. This bill would also provide that no private right of action is authorized for a violation of these provisions.   Existing law authorizes the Labor Commissioner to investigate and enforce statutes and orders of the Industrial Welfare Commission that, among other things, specify the requirements for the payment of wages by employers. Existing law provides for criminal and civil penalties for violations of statutes and orders of the commission regarding payment of wages.   This bill would make technical, nonsubstantive changes to this provision.  Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated 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) "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. (b) "Employment agency" has the same meaning as defined in Section 1812.501 of the Civil Code. (c) "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 either of the following: (1) Publish 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. (2) Affirmatively ask 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. (b) Unless based on a bona fide occupational qualification, an employment agency shall not do any of the following: (1) Publish 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. (2) Limit, segregate, or classify 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 ask 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. (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 a provision stating or indicating that an individual's current employment is a requirement for a job. 1047. Nothing in this chapter shall be construed to prohibit 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: (a) 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. (3) Stating that only individuals who are current employees of the employer will be considered for that job. (b) 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. (c) Obtaining information regarding an individual's employment, including recent relevant experience. (d) Having knowledge of a person's employment status. (e) Inquiring as to the reasons for an individual's employment status. (f) Refusing to offer employment to a person because of the reasons underlying an individual's employment status. (g) Otherwise making employment decisions pertaining to that individual. 1048. An employer, an employment agency, or a person operating an Internet Web site for posting jobs shall not do either of the following: (a) Interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this chapter. (b) Discriminate against any individual because the individual: (1) Opposed any practice made unlawful by this chapter. (2) Has instituted, or caused to be instituted, any proceeding under or related to this chapter. (3) Has provided, or is about to provide, any information in connection with any inquiry or proceeding relating to any right provided under this chapter. (4) Has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this chapter. 1049. An individual aggrieved by a violation of this chapter may file a complaint with the Labor Commissioner. The Labor Commissioner may 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 of this chapter. An employer, employment agency, or person operating an Internet Web site for posting jobs that violates any provision of this chapter shall be subject to a civil penalty of one thousand dollars ($1,000) for the first violation of this chapter, five thousand dollars ($5,000) for the second violation, and ten thousand dollars ($10,000) for each subsequent violation. 1049.5. Notwithstanding any provision of law, nothing in this chapter shall be construed to create or authorize a private right of action for a violation of this chapter.   SECTION 1.   Section 98 of the Labor Code is amended to read: 98. (a) The Labor Commissioner is authorized to investigate employee complaints. The Labor Commissioner may provide for a hearing in an action to recover wages, penalties, and other demands for compensation, including liquidated damages if the complaint alleges payment of a wage less than the minimum wage fixed by an order of the Industrial Welfare Commission or by statute, properly before the division or the Labor Commissioner, including orders of the Industrial Welfare Commission, and shall determine all matters arising under his or her jurisdiction. It is within the jurisdiction of the Labor Commissioner to accept and determine claims from holders of payroll checks or payroll drafts returned unpaid because of insufficient funds, if, after a diligent search, the holder is unable to return the dishonored check or draft to the payee and recover the sums paid out. Within 30 days of the filing of the complaint, the Labor Commissioner shall notify the parties as to whether a hearing will be held, whether action will be taken in accordance with Section 98.3, or whether no further action will be taken on the complaint. If the determination is made by the Labor Commissioner to hold a hearing, the hearing shall be held within 90 days of the date of that determination. However, the Labor Commissioner may postpone or grant additional time before setting a hearing if the Labor Commissioner finds that it would lead to an equitable and just resolution of the dispute. A party who has received actual notice of a claim before the Labor Commissioner shall, while the matter is before the Labor Commissioner, notify the Labor Commissioner in writing of a change in that party's business or personal address within 10 days after the change in address occurs. It is the intent of the Legislature that hearings held pursuant to this section be conducted in an informal setting preserving the rights of the parties. (b) When a hearing is set, a copy of the complaint, which shall include the amount of compensation requested, together with a notice of time and place of the hearing, shall be served on all parties, personally or by certified mail, or in the manner specified in Section 415.20 of the Code of Civil Procedure. (c) Within 10 days after service of the notice and the complaint, a defendant may file an answer with the Labor Commissioner in a form as the Labor Commissioner may prescribe, setting forth the particulars in which the complaint is inaccurate or incomplete and the facts upon which the defendant intends to rely. (d) A pleading other than the complaint and answer of the defendant or defendants shall not be required. Both shall be in writing and shall conform to the form and the rules of practice and procedure adopted by the Labor Commissioner. (e) Evidence on matters not pleaded in the answer shall be allowed only on terms and conditions the Labor Commissioner shall impose. In all these cases, the claimant shall be entitled to a continuance for purposes of review of the new evidence. (f) If the defendant fails to appear or answer within the time allowed under this chapter, a default shall not be taken against him or her, but the Labor Commissioner shall hear the evidence offered and shall issue an order, decision, or award in accordance with the evidence. A defendant failing to appear or answer, or subsequently contending to be aggrieved in a manner by want of notice of the pendency of the proceedings, may apply to the Labor Commissioner for relief in accordance with Section 473 of the Code of Civil Procedure. The Labor Commissioner may afford this relief. A right to relief, including the claim that the findings or award of the Labor Commissioner or judgment entered thereon are void upon their face, shall not accrue to the defendant in any court unless prior application is made to the Labor Commissioner in accordance with this chapter. (g) A hearing conducted pursuant to this chapter is governed by the division and by the rules of practice and procedure adopted by the Labor Commissioner. (h) (1) Whenever a claim is filed under this chapter against a person operating or doing business under a fictitious business name, as defined in Section 17900 of the Business and Professions Code, which relates to the person's business, the division shall inquire at the time of the hearing whether the name of the person is the legal name under which the business or person has been licensed, registered, incorporated, or otherwise authorized to do business. (2) The division may amend an order, decision, or award to conform to the legal name of the business or the person who is the defendant to a wage claim, if it can be shown that proper service was made on the defendant or his or her agent, unless a judgment had been entered on the order, decision, or award pursuant to subdivision (d) of Section 98.2. The Labor Commissioner may apply to the clerk of the superior court to amend a judgment that has been issued pursuant to a final order, decision, or award to conform to the legal name of the defendant, if it can be shown that proper service was made on the defendant or his or her agent.