Bill makes ex-cons a protected class

JUNE 1, 2010

By LAURA SUCHESKI

If you don’t hire ‘em, you might join ‘em, if a new bill proposed by Assemblyman Steven Bradford, D – Inglewood, becomes law.  The Assemblyman is sponsoring AB2727 — otherwise known as the “Re-entry Employment Opportunity Act” – a bill that will make criminals out of employers who discriminate against applicants with criminal histories.

The bill made the California Chamber of Commerce’s infamous “Job Killer” list for reducing the autonomy of employers to make decisions that affect their liability.

The bill would prohibit employers from excluding applications from convicted criminals if they cannot prove “there is a direct relationship between the criminal offenses and the employment sought” and “the granting of employment would involve an unreasonable risk to property or to the safety or welfare of specific persons or the general public.”   Existing laws already prohibit employers from considering an applicant’s prior arrests, detentions or charges that did not result in a conviction.

Assemblyman Bradford’s office declined to comment.

The stated purpose of this bill is to codify existing federal laws enforced by the Equal Employment Opportunities Commission into state law, but several interest groups contend that it goes far beyond that, providing more opportunities for civil suits on vague grounds.

Employers’ groups object to the “unnecessary” and “vague” law that goes above and beyond existing federal anti-discrimination laws.   “These phrases are not defined,” writes the California Chamber of Commerce. “In establishing these new standards the employer must consider additional undefined criteria, such as the ‘effect’ the conviction will have on the applicant’s ability to perform on the job duties, the ‘seriousness’ of the offense, and whether the employer has ‘legitimate’ interests…Subjective and undefined new standards are not only confusing and complex for employers to navigate, but each and every new standard and term leaves employers open for scrutiny and legal challenge,”

“The bill opens up a new private right of action against both public and private employers if they run afoul of this new law,” says Julianne Broyles, speaking on behalf of client California Association of Joint Powers Authorities which has come out against the bill. The California Chamber of Commerce adds, “A private right of action with one-sided attorneys’ fees recovery can encourage unnecessary and unmeritorious litigation over such disputes.”

Appropriations Committee member Asssemblywoman Diane Harkey, R – Dana Point, also expressed her concerns: “Enacting AB 2727 as proposed would place potential employers at risk of a lawsuit for merely rejecting an application for hire. While I respect the author’s intent to seek employment opportunities for those that have paid their debt to society, businesses should not be forced to hire anyone, and certainly don’t need more frivolous or class-action lawsuits.  We should respect the right employers to make hiring decisions, which may involve a determination regarding the safety of their workplace and their customers.”

Opponents of the bill note that with every business decision, employers seek to minimize risk and maximize profit.  These judgment calls rely on evaluations of prospective employees’ future performances.  A history of past transgressions with the law, society’s only codified values system, is, of course, one measure of risk to employers, just like a loaner’s credit history is to lenders.   Supporters of such legislation believe that everyone should be given a second chance — a nice sentiment, but the legislation would in effect turn a second chance — a private business decision — into a government-enforced right.

Beyond the issues of rights, the Chamber and other business groups fear that at a time when California employers already are burdened by doing in the state with the fifth worst lawsuit climate, it seems that some state lawmakers are set on making it to number one.


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