These bills would kill even more Calif. jobs

Aug. 15, 2012

By Dave Roberts

California’s official unemployment rate in June was 10.7 percent, third highest in the country. It’s been in double digits for 42 straight months. When those who have stopped looking for work or are underemployed are included, California’s real unemployment rate skyrockets to 20.3 percent.

One of the reasons that one out of five Californians is in such dire straits is due to the job-killing legislation coming out of Sacramento. The California Chamber of Commerce has identified three Democratic bills currently moving through the Legislature that will likely lead to even more job losses: AB 1450, AB 1999 and AB 2039. The bills purport to help job applicants and employees, but in doing so they will increase the burdens on already over-burdened businesses.

Criminalizing Background Checks

AB 1450, by Assemblyman Michael Allen, D-Santa Rosa, subjects employers to charges of discrimination for inquiring into an applicant’s most recent employment history.

“Today millions of Californians are out of work and struggling to find jobs,” said Allen, as he introduced the bill on the Assembly floor on May 30. “The challenge of long-term unemployment is especially severe among older workers who are more likely than any other age group to be unemployed for more than a year. Men and women returning from military service overseas have been hard hit as well.

“Unfortunately, companies, including employment agencies and job-posting websites, have explicitly advertised that they won’t hire someone who is currently unemployed. Thus people who have lost their previous jobs through no fault of their own have been trapped by the cruel Catch 22 situation: if you’re out of work you’re out of luck. AB 1450 seeks to end that Catch 22 by requiring employers and employment agencies, online job-posting sites and contractors doing business for the state from denying employment opportunities to individuals simply because they are out of work through no fault of their own.”

The innocuous-sounding bill passed easily along party lines in the Assembly, and is now working its way through the Senate where it will likely sail through.

But not if California Chamber of Commerce officials can help it. They put together a short video, warning that the bill will create a dilemma for employers in the hiring process: If they do a background check on an applicant, find out he is unemployed and then don’t hire him, it opens up the employer to fees, penalties and a discrimination lawsuit. For example, a hospital couldn’t check whether an anesthesiologist has a history of putting patients at risk, according to the Chamber.

The Chamber’s Policy Advocate Jennifer Barrera said, “Employers want to know who they are bringing into their workplace. And if they can’t properly screen an applicant without the threat of a discrimination claim they could perhaps bring in somebody who’s dangerous into their workplace.”

Cal Chamber President/CEO Allan Zaremberg said, “This is what’s crazy about this legislation: an employer doesn’t have the option. The Legislature in California is preventing an employer from determining whether or not a new employee is going to be dangerous or a hazard. And that is just going to put everybody at risk.”

Diane Miller, an executive recruiter, agreed, saying, “From an employer’s standpoint, I think it’s very scary.”

The analysis of AB 1450 prepared for the Senate Appropriations Committee reveals that the legislation is potentially confusing. First it states that the bill makes it illegal for an employer or recruiter to refuse “to hire a person because of that person’s employment status.” But a little later on it states that the bill does not prevent an employer or recruiter from finding out about an applicant’s employment status and job history, and it does not prevent them from “refusing to offer employment to a person because of the reasons underlying an individual’s employment status.”

Its main import will be to allow anyone who is unemployed and not hired for a job, to file a discrimination complaint and/or a lawsuit against the employer on the suspicion that he did not get the job because he’s unemployed. It’s hard to imagine the complaint or litigation being successful unless an employer were stupid enough to state that the person did not get hired because he’s unemployed. But in the meantime employers will be hit with the time and expense of fighting frivolous complaints and litigation. And the state budget will be hit with the expense of hiring more complaint investigators to deal with an estimated 20 percent increase in their workload, according to the analysis.

Caregivers Added to Protected Class

AB 1999, by Assemblywoman Julia Brownley, D-Santa Monica, makes it easier for an employee who is caring for a family member to sue his employer if he feels he’s not being treated like other employees who are not family caregivers.

“In today’s difficult job market many workers feel pressure to hide the fact that they have family caregiving responsibilities, because they fear that being labeled as a caregiver may make them vulnerable to being laid off or having other adverse actions taken against them,” Brownley told the Senate Judiciary Committee on June 26. “AB 1999 would simply prevent employers from unfairly using an employee’s family caregiver status as a factor in employment decisions.”

Joan Williams, founding director of the Center for WorkLife Law, told the committee that if identical resumes are submitted to employers, except one of them states that the applicant is a mother and the other doesn’t, the mother “is nearly 80 percent less likely to be hired and 100 percent less likely to be promoted. Fathers do great in the workplace so long as they don’t make it clear that they have caregiving responsibilities. If they make it clear they do, then the discrimination against them is even stronger than it is against mothers.”

Also discriminated against are female job applicants who are wearing wedding rings, according to Williams. “The assumption is that she’s going to have a child soon, and she’s not hired,” she said. The bill would also protect an employee who is caring for his father who is on dialysis and doesn’t receive a promotion “because of the assumption that their attention is going to be elsewhere,” she said. “The economy is simply too bad to have people losing their jobs because they’re doing the kind of thing that we would expect any responsible family member to do.”

Mariko Yoshihara, political director for the California Employment Lawyers Association, told the committee about Bakersfield firefighter Derek Tisinger, a single father who was passed over for promotion because he often traded his shifts with other firefighters in order to pick up his three children from school, feed them dinner and get them to bed. Tisinger sued and won $75,000 from a jury, but the award was overturned on appeal.

Barrera led the opposition against AB 1999 at the committee hearing, arguing that it’s poorly written. She cited “the ambiguity this would create because it was not defined as to what ‘family caregiver status’ is. The bill says it’s medical or supervisory care. But what is medical care? To the extent that you’re just providing Tylenol to your child that you’re going to trigger the medical care, then it’s going to broaden who is protected under this classification. It could apply essentially to every person in the workforce. And when we protect everybody, it makes our ability to manage the workforce impossible.”

Barrera added that there is no need for the bill because there are already a plethora of federal and state laws in place protecting the rights of workers from discrimination.

The committee approved the bill 3-1.

Unlimited Leave

AB 2039, authored by Assemblyman Sandré Swanson, D-Alameda, follows the same pattern as the other two job killers. It significantly expands the category of serious health conditions that allow an employee to take a leave of absence.

All three bills are scheduled for review Thursday in the Senate Appropriations Committee.

“We identify job killers because we think they are going to have a negative impact on our job recovery,” said Zaremberg in another Chamber video. “It’s exactly the opposite of what the number one issue is in California and the country: job creation, economy recovery. These kinds of [job-killing] situations don’t appear anywhere else in the country. And when you have increased exposure of liability you think twice before you invest in California. We need to change that attitude.”