California Assembly Bill AB1017 Amended / Bill

 BILL NUMBER: AB 1017AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 16, 2015 AMENDED IN ASSEMBLY MARCH 26, 2015 INTRODUCED BY Assembly Member Campos FEBRUARY 26, 2015 An act to  amend Section 12990 of the Government Code, relating to discrimination, and making an appropriation therefor.   add Section 432.3 to the Labor Code, relating to em   ployers.  LEGISLATIVE COUNSEL'S DIGEST AB 1017, as amended, Campos.  Discrimination: equal pay: state contracting.   Employers.   Existing law imposes various restrictions on employers with respect to applicants for employment. A violation of those restrictions is a misdemeanor.   This bill would prohibit an employer from publishing, listing, or posting an advertisement, as specified, to recruit candidates without including the minimum rate of pay, and from paying wages for less than what were advertised. The bill would also prohibit an employer from seeking salary history information from an applicant for employment and from releasing the salary history of any current or former employee without written authorization from the current or former employee. By imposing new prohibitions on employers, the violation of which would be a crime, this bill would impose a state-mandated local program.   The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.   This bill would provide that no reimbursement is required by this act for a specified reason.   Existing law subjects an employer who is, or wishes to become, a contractor with the state for public works, or for goods or services, to various nondiscrimination requirements. Existing law authorizes requiring an employer to submit a nondiscrimination program to the Department of Fair Employment and Housing for approval and certification, prior to becoming a contractor or subcontractor with the state, as well as requiring the provision of periodic reports of contractor or subcontractor compliance with that program.   This bill would require an employer with 100 or more employees, prior to becoming a contractor or subcontractor with the state, to submit an income equality program to the Department of Fair Employment and Housing for approval and certification and to submit periodic reports of its compliance with that program. The bill would require the income equality program to include the collection of summary data on the compensation paid to employees, including, but not limited to, data sorted by gender and race, and policies designed to ensure income equality and prevent unlawful discrimination.   Existing law authorizes the Department of Fair Employment and Housing, where the department determines and certifies that specified provisions relating to nondiscrimination are violated or determines a contractor or subcontractor is engaging in certain unlawful practices, to recommend appropriate sanctions to the awarding agency.   This bill would require the contractor or subcontractor to be subject to a civil penalty of not less than $10,000 if the department makes the determination and certification described above. This bill would require the penalty to be deposited in the Fair Employment Fund, which the bill would create, and would continuously appropriate the money in the fund to the department to be used for specified purposes. By creating a continuously appropriated fund, this bill would make an appropriation.  Vote:  2/3   majority  . Appropriation:  yes   no  . Fiscal committee: yes. State-mandated local program:  no   yes  . THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 432.3 is added to the   Labor Code   , to read:   432.3. An employer shall not do any of the following: (a) Orally or in writing, personally or through an agent, publish, list, or post, publicly or within the organization, or publish, list, or post with any employment agency, job-listing service, or Internet Web site, an advertisement to recruit candidates for hire or independent contractors to fill a position within the organization, without including the minimum rate of pay whether paid by the hour, shift, day, week, salary, piece, commission, or other form of pay, including overtime, with allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances. In addition, an employer shall not pay wages for the position for less than what were advertised. (b) Orally or in writing, personally or through an agent, seek salary history information, including, but not limited to, compensation and benefits, from an applicant for employment for an interview or as a condition of employment. (c) Release the salary history of any current or former employee to any prospective employer in response to a request as part of an interview or hiring process without written authorization from the current or former employee.   SEC. 2.   No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.   SECTION 1.   Section 12990 of the Government Code is amended to read: 12990. (a) Any employer who is, or wishes to become, a contractor with the state for public works or for goods or services is subject to the provisions of this part relating to discrimination in employment and to the nondiscrimination requirements of this section and any rules and regulations that implement it. (b) (1) Prior to becoming a contractor or subcontractor with the state, an employer may be required to submit a nondiscrimination program to the department for approval and certification and may be required to submit periodic reports of its compliance with that program. (2) Prior to becoming a contractor or subcontractor with the state, an employer with 100 or more employees shall submit an income equality program to the department for approval and certification and shall be required to submit periodic reports of its compliance with that program. The income equality program shall include the collection of summary data on the compensation paid to employees, including data sorted by gender and race, and include policies designed to ensure income equality and prevent unlawful discrimination. (c) Every state contract and subcontract for public works or for goods or services shall contain a nondiscrimination clause prohibiting discrimination on the bases enumerated in this part by contractors or subcontractors. The nondiscrimination clause shall contain a provision requiring contractors and subcontractors to give written notice of their obligations under that clause to labor organizations with which they have a collective bargaining or other agreement. These contractual provisions shall be fully and effectively enforced. This subdivision does not apply to a credit card purchase of goods of two thousand five hundred dollars ($2,500) or less. The total amount of exemption authorized herein shall not exceed seven thousand five hundred dollars ($7,500) per year for each company from which a state agency is purchasing goods by credit card. It shall be the responsibility of each state agency to monitor the use of this exemption and adhere to these restrictions on these purchases. (d) The department shall periodically develop rules and regulations for the application and implementation of this section, and submit them to the council for consideration and adoption in accordance with the provisions of Chapter 3.5 (commencing with Section 11340) of Part 1. Those rules and regulations shall describe and include, but not be limited to, all of the following: (1) Procedures for the investigation, approval, certification, decertification, monitoring, and enforcement of nondiscrimination programs. (2) The size of contracts or subcontracts below which any particular provision of this section shall not apply. (3) The circumstances, if any, under which a contractor or subcontractor is not subject to this section. (4) Criteria for determining the appropriate plant, region, division, or other unit of a contractor's or subcontractor's operation for which a nondiscrimination program is required. (5) Procedures for coordinating the nondiscrimination requirements of this section and its implementing rules and regulations with the California Plan for Equal Opportunity in Apprenticeship, with the provisions and implementing regulations of Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1, and with comparable federal laws and regulations concerning nondiscrimination, equal employment opportunity, and affirmative action by those who contract with the United States. (6) The basic principles and standards to guide the department in administering and implementing this section. (e) Where a contractor or subcontractor is required to prepare an affirmative action, equal employment, or nondiscrimination program subject to review and approval by a federal compliance agency, that program may be filed with the department, instead of any nondiscrimination program regularly required by this section or its implementing rules and regulations. Such a program shall constitute a prima facie demonstration of compliance with this section. Where the department or a federal compliance agency has required the preparation of an affirmative action, equal employment, or nondiscrimination program subject to review and approval by the department or a federal compliance agency, evidence of such a program shall also constitute prima facie compliance with an ordinance or regulation of any city, city and county, or county that requires an employer to submit such a program to a local awarding agency for its approval prior to becoming a contractor or subcontractor with that agency. (f) (1) Where the department determines and certifies that the provisions of this section or its implementing rules and regulations are violated or determines a contractor or subcontractor is engaging in practices made unlawful under this part, the contractor or subcontractor shall be subject to a civil penalty of not less than ten thousand dollars ($10,000). The department may recommend additional appropriate sanctions to the awarding agency. Any such recommendation shall take into account the severity of the violation or violations and any other penalties, sanctions, or remedies previously imposed. (2) (A) The penalty collected pursuant to paragraph (1) shall be deposited in the Fair Employment Fund, which is hereby created in the General Fund. (B) Notwithstanding Section 13340, all money transferred to the Fair Employment Fund is hereby continuously appropriated to the department without regard to fiscal years for enforcement of the Fair Employment and Housing Act and for education of employers and employees of their rights and responsibilities under the act. (C) Money appropriated to the department shall be used to supplement, not supplant, other funding available to the department for the purposes specified in subparagraph (B).