In October 2019, Garvin Newsom signed a two page bill (AB 749) into law but it looks to me that the state isn’t following it. I would like somebody that passed the bar to give me their take on my question.
While this law probably has no effect on most readers, it should be instructive to see how government really functions.
Before AB 749
Like many things, the bill is in response to a lawsuit. Below is the situation prior to the passage of AB 749.
Carmyn Fields, a former California Highway Patrol analyst, told a state Senate committee in June that she has been unable to find employment with another law enforcement agency since she reached a settlement agreement with CHP.
Fields sued the department after supervisors failed to take action when she reported her boss had repeatedly sexually harassed her. Her settlement agreement included a “no rehire” clause.New California law bans ‘no-rehire’ clauses after worker lawsuits
Now when she applies for other state law enforcement jobs, she has to disclose on the state application that she “agreed not to seek or accept subsequent employment with the state or any state agency.”
Here is the language cited by Carmyn Fields in the Sacramento Bee article quoted above.
Have you ever entered into any written agreement with a state agency in which you agreed not to seek or accept subsequent employment with the state or any state agency?
Have you ever entered into any written agreement with a state agency involving an adverse action, rejection on probation, or AWOL termination, in which you agreed not to seek or accept subsequent employment with a particular state agency?
After AB 749
The law went into effect January 1, 2020. Here are descriptions of how it is supposed to work.
Under new Code of Civil Procedure section 1002.5 (AB 7 49), effective Jan. 1, a settlement agreement or severance agreement in an employment dispute cannot contain a provision prohibiting, preventing, or restricting an “aggrieved person” from obtaining future employment with the employer, parent company, subsidiary, division, affiliate, or contractor of the employer. The new law explicitly states that a “no rehire” provision is void as a matter of law and against public policy.
An employer may include a “no rehire” provision in a severance or separation agreement if the employee has not filed a claim against the employer. Also, an employer can include a “no rehire” provision in a settlement agreement if the employer has made a good faith determination that the settling employee engaged in sexual harassment or sexual assault.
Sara Boyns, Workplace Law: Limitations on no rehire provisions
Additionally, under AB 749, employers will need to review their standard settlement agreements to remove provisions that preclude an employee from being rehired by the employer or obtaining employment with an affiliate.
These 2020 laws look to level playing field for California workers
The bill summary written by the Legislative Counsel states:
This bill would prohibit an agreement to settle an employment dispute from containing a provision that prohibits, prevents, or otherwise restricts a settling party that is an aggrieved person, as defined, from working for the employer against which the aggrieved person has filed a claim or any parent company, subsidiary, division, affiliate, or contractor of the employer.
(AB 749 appears in its entirety at the end of this post.)
Legal Question
Given the above, why is the State of California still requiring every job applicant to answer the very questions that gave rise to AB 749?
The questions asked of Carmyn Fields, are still being asked in February 2020, six weeks after they were made illegal, allegedly.
Here is a screen shot from the California HR website from earlier this week.
Have you ever entered into any written agreement with a state agency in which you agreed not to seek or accept subsequent employment with the state or any state agency?
Have you ever entered into any written agreement with a state agency involving an adverse action, rejection on probation, or AWOL termination, in which you agreed not to seek or accept subsequent employment with a particular state agency?
Did I miss something or is the Human Resources department of the State of California violating the law?
Those with a J.D. at the end of your name, please opine.
Below is the bill in its entirety.