Legal News You Can Use
By Stephen T. Holzer
AB 1450-do you have to be employed to get employed?
The bill, if enacted, would (with certain exceptions) prohibit an employer with 15 or more employees, companies of any size who are State contractors and employment agencies of any size from taking into account a job applicant's status as unemployed. The bill would also prohibit such an employer or agency, as well as anyone operating an Internet web site, from publishing advertisements which indicate that a job applicant must be presently employed before he or she will be considered for a job.
One legislative advocate for passage of the bill argues that "this recession has given birth to a new and particularly insidious form of discrimination. Across the country, many employers, employment agencies, and online job websites have begun to openly advertise warnings such as 'no unemployed candidates considered' or 'must be currently employed.'... this creates a perverse 'catch-22' wherein these employers require an applicant already have a job in order to find a job."
On the other hand, opponents of the bill argue that its effect, as a practical matter, would prohibit inquiring about any aspect of an applicant's job history for fear that, if the applicant were presently unemployed and a job were not offered, a discrimination suit would inevitably follow. Additionally, opponents suggest that if the bill were enacted, this would provide one more reason for employers to flee the State, thus potentially lowering available jobs rather than creating them.
Introduced by Assembly Member Michael Allen (D-7th District, Santa Rosa), AB 1450 has passed its first test in the Assembly Labor & Employment Committee on a straight 5-1 party-line vote.
AB 2039--expand protected leave from job?
Presently, under legislation known as the California Family Rights Act, employers with 50 or more employees are required to grant an employee up to 12 weeks of unpaid leave within any year period for specified reasons: to allow care in connection with the child's birth or in connection with adoption/foster care; to allow care for a parent, spouse or child who has a serious health condition; and to allow care for the employee's own serious health condition.
AB 2039, if enacted, would greatly expand the specified reasons requiring employers to give unpaid leave. First, the bill would remove the requirement that a "child" be a minor dependent, thus requiring leave to allow an employee care for an adult, independent "child". Second, the bill would require leave to allow an employee to care for a sibling, grandparent, grandchild or parent-in-law. Finally, the bill would add "domestic partners" to the category of "spouse", thus requiring leave for an employee to care for a partner with a serious health condition.
The arguments for and against AB 2039 echo the arguments made in connection with AB 1450. According to an analysis by the Assembly Committee on Labor & Employment, proponents argue that "it is important to protect workers' ability to maintain family stability in times of economic instability, in whatever iteration of family is most appropriate. They state that this bill would make it possible for all California families to be protected with family and medical leave so that illness does not necessitate unemployment and financial insecurity."
Opponents argue that existing family-leave requirements already are proving very expensive for employers and that the net effect of the bill , if enacted, would actually be to reduce employment in the State. This reduction would occur because employers, even if they did not leave the State, would nevertheless have incentive to ensure that they did not grow as big as 50 employees in order to avoid being affected by AB 2039.
As for status, the bill was introduced by Assembly Member Sandre Swanson (D-16th District; Oakland) and, like AB 2039, passed the Committee on Labor & Employment on a party-line vote.
Stephen Holzer practices law at the Encino law firm of Lewitt Hackman Shapiro Marshall & Harlan, specializing in business litigation and environmental matters, and is the Chair of the United Chambers of Commerce of the San Fernando Valley. He can be reached at sholzer@lewitthackman.com or 818-907-3299 with any questions about this column.