California bill would ban employers from screening out long-term unemployed

Job applicants sought — but only if they don't need work.

The message in some job advertisements these days is pretty blunt: Don't bother sending a résumé if you're not bringing home a paycheck already.

The ads list current or recent employment as an eligibility requirement, a screen to narrow the pool of candidates in a rocky economy that often leads to dozens of applicants for a single job.

A random search of online job listings last year by the National Employment Law Project, a nonprofit advocacy group, found 150 ads nationwide that excluded applicants based on employment status. Most of them said "must be currently employed," the group reported.

"So many people are unemployed for such long periods of time that this kind of discrimination has a devastating impact," said Maurice Emsellem, NELP's policy co-director.

New Jersey has passed a law banning such advertisements, federal legislation is pending, and a newly proposed California bill, Assembly Bill 1450, would prohibit discriminating against the jobless in hiring.

"It's the same as excluding a particular religion or minority group – it's wrong," said Assemblyman Michael Allen, a Santa Rosa Democrat, who is the author of AB 1450.

College graduates, military personnel and women returning to the workforce are among groups of people affected by a blanket exclusion, Allen said.

Opponents of AB 1450 counter that lawmakers have no business interfering in companies' internal affairs and that Allen's measure could prompt a flood of frivolous complaints that would be costly to investigate and difficult to prosecute.

"The Legislature shouldn't be running their business for them," said Joel Fox, president of the Small Business Action Committee.

Opponents say AB 1450 is a one-size-fits-all solution, and that an applicant's current or recent employment can be critical in various high-tech or other jobs requiring technology, software or skill sets that change rapidly.

Roger Niello, president of the Sacramento Metropolitan Chamber of Commerce, said barring businesses from disqualifying the jobless could tie a company's hands in the kinds of questions asked during job interviews.

When an applicant's résumé shows a gap in employment, it is natural to ask why, Niello said.

"If that law passed, you'd really be getting into risky territory any time you asked any question like that," he said.

Niello said he does not agree with jobless-need-not-apply advertising, but added, "I think it's absolutely inappropriate to say they can't."

Allen said his bill would not bar employers from requiring certain levels of experience, training or education – it simply would require decisions to be based on merit, not joblessness.

Allen's bill would not permit victims to sue. Violations would be subject to fines of $1,000 for a first offense, $5,000 for a second, and $10,000 for each one thereafter. Complaints about employers would be investigated by the state labor commissioner, while accusations about employment agencies would be handled by city attorneys or the state attorney general's office, Allen said.

Potential costs of AB 1450 have not been estimated.

Eric Steele, a 46-year-old Sacramentan who has been unemployed for three years, said the state's unemployment rate, currently more than 11 percent, would never fall if companies hired only people who hold jobs.

"It's us that don't have a job," Steele said. "We need a job."

Sonja Tyler, 41, said that joblessness does not signal incompetence. "I think it's unfair," she said. "Most people wouldn't be looking for a job if they had a job."

Several Republican lawmakers said they have not seen Allen's new bill, but conceptually, they don't like it.

Assemblyman Curt Hagman, R-Chino Hills, said that current employment can indicate that someone has the commitment and social skills needed to justify a company's investment. It's a valid issue to consider, he said.

"(Employers have told me) that 'we can teach skills to an employee, but we don't know if we can teach them respect for authority, the ability to work well with others, basic work habits, or the ability to show up on time and be reliable,' " Hagman said.

Allen said his bill will fill a vacuum in state law, which does not cite joblessness as a protected class against discrimination.

Even if AB 1450 gets derailed, some legal experts say companies should think twice about automatically disqualifying the unemployed.

Martha West, professor emerita at UC Davis School of Law, said lawsuits could allege discrimination against people of color, who have significantly higher unemployment rates than whites.

"It's a most peculiar kind of response to an economic crisis, to stop hiring people who don't have jobs," said attorney Mike Herald of the Western Center on Law and Poverty.

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