Bill Text: CA AB1843 | 2015-2016 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Applicants for employment: criminal history.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2016-09-27 - Chaptered by Secretary of State - Chapter 686, Statutes of 2016. [AB1843 Detail]

Download: California-2015-AB1843-Amended.html

---

BILL NUMBER: AB 1843	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 12, 2016

INTRODUCED BY   Assembly Member Mark Stone

                        FEBRUARY 9, 2016

   An act to amend Section 432.7 of the Labor Code, relating to
employment.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1843, as amended, Mark Stone. Applicants for employment:
criminal history.
   Existing law prohibits an employer, whether a public agency or
private individual or corporation, from asking an applicant for
employment to disclose, or from utilizing as a factor in determining
any condition of employment, information concerning an arrest or
detention that did not result in a conviction, or information
concerning a referral or participation in, any pretrial or posttrial
diversion program, except as specified. Existing law also prohibits
an employer, as specified, from asking an applicant to disclose, or
from utilizing as a factor in determining any condition of
employment, information concerning a conviction that has been
judicially dismissed or ordered sealed, except in specified
circumstances.  Existing law also prohibits a person, knowing
that he or she is not authorized to receive   or possess
that information, from receiving or possessing that information,
except as specified.  Existing law makes it a crime to
intentionally violate these provisions.
   This bill would also prohibit an employer from asking an applicant
for employment to disclose, or from utilizing as a factor in
determining any condition of employment, information concerning
 specific juvenile court actions or custodial detentions.
  or related to an arrest, detention, processing,
diversion, supervision, adjudication, or court disposition that
occurred while the person was subject to the process and jurisdiction
of juvenile court law. The bill would revise the prohibition on
receiving or possessing information to instead apply to any person
that is not authorized to   receive or possess that
information. The bill, for the purposes of the prohibitions and
exceptions described above, would provide that "conviction" excludes
an adjudication by a juvenile court or any other court order or
action taken with respect to a person who is currently, or has been
under, the jurisdiction of juvenile court law, and would make related
and co   nforming changes. 
   Because this bill would  expand the definition 
 modify the scope  of a crime, it would impose a
state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 432.7 of the Labor Code is amended to read:
   432.7.  (a)  (1)    No employer, whether a
public agency or private individual or corporation, shall ask an
applicant for employment to disclose, through any written form or
verbally, information concerning an arrest or detention that did not
result in  conviction or juvenile adjudication, 
 conviction,  or information concerning a referral to, and
participation in, any pretrial or posttrial diversion program, or
concerning a conviction  or juvenile adjudication 
that has been judicially dismissed or ordered sealed pursuant to law,
including, but not limited to, Sections 1203.4, 1203.4a, 1203.45,
and 1210.1 of the Penal  Code and Sections 781, 786, and 793
of the Welfare and Institutions  Code, nor shall any
employer seek from any source whatsoever, or utilize, as a factor in
determining any condition of employment including hiring, promotion,
termination, or any apprenticeship training program or any other
training program leading to employment, any record of arrest or
detention that did not result in  conviction or juvenile
adjudication,   conviction,  or any record
regarding a referral to, and participation in, any pretrial or
posttrial diversion program, or concerning a conviction  or
juvenile adjudication  that has been judicially dismissed or
ordered sealed pursuant to law, including, but not limited to,
Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal 
Code and Sections 781, 786, and 793 of the Welfare and Institutions
 Code. As used in this section, a conviction shall include a
plea, verdict, or finding of guilt regardless of whether sentence is
imposed by the  court, and a juvenile adjudication shall
include a finding of wardship under Section 602 of the Welfare and
Institutions Code.   court.  Nothing in this
section shall prevent an employer from asking an employee or
applicant for employment about an arrest for which the employee or
applicant is out on bail or on his or her own recognizance pending
trial. 
   (2) No employer, whether a public agency or private individual or
corporation, shall ask an applicant for employment to disclose,
through any written form or verbally, information concerning or
related to an arrest, detention, processing, diversion, supervision,
adjudication, or court disposition that occurred while the person was
subject to the process and jurisdiction of juvenile court law, nor
shall any employer seek from any source whatsoever, or utilize, as a
factor in determining any condition of employment including hiring,
promotion, termination, or any apprenticeship training program or any
other training program leading to employment, any record concerning
or related to an arrest, detention, processing, diversion,
supervision, adjudication, or court disposition that occurred while a
person was subject to the process and jurisdiction of juvenile court
law.  
   (3) For purposes of this section, "conviction" does not include,
and shall not be construed to include, any adjudication by a juvenile
court or any other court order or action taken with respect to a
person who is currently, or has been under, the process and
jurisdiction of juvenile court law. 
   (b) Nothing in this section shall prohibit the disclosure of the
information authorized for release under Sections 13203 and 13300 of
the Penal Code, to a government agency employing a peace officer.
However, the employer shall not determine any condition of employment
other than paid administrative leave based solely on an arrest
report. The information contained in an arrest report may be used as
the starting point for an independent, internal investigation of a
peace officer in accordance with Chapter 9.7 (commencing with Section
3300) of Division 4 of Title 1 of the Government Code.
   (c) In any case where a person violates this section, or Article 6
(commencing with Section 11140) of Chapter 1 of Title 1 of Part 4 of
the Penal Code, the applicant may bring an action to recover from
that person actual damages or two hundred dollars ($200), whichever
is greater, plus costs, and reasonable attorney's fees. An
intentional violation of this section shall entitle the applicant to
treble actual damages, or five hundred dollars ($500), whichever is
greater, plus costs, and reasonable attorney's fees. An intentional
violation of this section is a misdemeanor punishable by a fine not
to exceed five hundred dollars ($500).
   (d) The remedies under this section shall be in addition to and
not in derogation of all other rights and remedies that an applicant
may have under any other law.
   (e) Persons seeking employment or persons already employed as
peace officers or persons seeking employment for positions in the
Department of Justice or other criminal justice agencies as defined
in Section 13101 of the Penal Code are not covered by this section.
   (f) Nothing in this section shall prohibit an employer at a health
facility, as defined in Section 1250 of the Health and Safety Code,
from asking an applicant for employment either of the following:
   (1) With regard to an applicant for a position with regular access
to patients, to disclose an arrest under any section specified in
Section 290 of the Penal Code.
   (2) With regard to an applicant for a position with access to
drugs and medication, to disclose an arrest under any section
specified in Section 11590 of the Health and Safety Code.
   (g) (1) No peace officer or employee of a law enforcement agency
with access to criminal or juvenile offender record information
maintained by a local law enforcement criminal or juvenile justice
agency shall knowingly disclose, with intent to affect a person's
employment, any information contained therein pertaining to an arrest
or detention or proceeding that did not result in a conviction,
including information pertaining to a referral to, and participation
in, any pretrial or posttrial diversion program,  or any
information contained therein pertaining to any processing,
supervision, adjudication, or court disposition that occurred while
the person was subject to the process and jurisdiction of juvenile
court law,  to any person not authorized by law to receive that
information.
   (2) No other person authorized by law to receive criminal or
juvenile offender record information maintained by a local law
enforcement criminal or juvenile justice agency shall knowingly
disclose any information received therefrom pertaining to an arrest
or detention or proceeding that did not result in a conviction,
including information pertaining to a referral to, and participation
in, any pretrial or posttrial diversion program,  or any
information contained therein pertaining to any processing,
supervision, adjudication, or court disposition that occurred while
the person was subject to the process and jurisdiction of juvenile
court law,  to any person not authorized by law to receive that
information.
   (3) No person, except those specifically referred to in Section
1070 of the Evidence Code, who  knowing he or she 
is not authorized by law to receive or possess criminal or juvenile
justice records information maintained by a local law enforcement
criminal or juvenile justice agency, pertaining to an arrest or other
proceeding that did not result in a conviction, including
information pertaining to a referral to, and participation in, any
pretrial or posttrial diversion program,  or any information
contained therein pertaining to any detention, processing,
supervision, adjudication, or court disposition that occurred while
the person was subject to the process and jurisdiction of juvenile
court law,  shall receive or possess that information.
   (h) "A person authorized by law to receive that information," for
purposes of this section, means any person or public agency
authorized by a court, statute, or decisional law to receive
information contained in criminal or juvenile offender records
maintained by a local law enforcement criminal or juvenile justice
agency, and includes, but is not limited to, those persons set forth
in Section 11105 of the Penal Code, and any person employed by a law
enforcement criminal or juvenile justice agency who is required by
that employment to receive, analyze, or process criminal or juvenile
offender record information.
   (i) Nothing in this section shall require the Department of
Justice to remove entries relating to an arrest or detention not
resulting in conviction from summary criminal history records
forwarded to an employer pursuant to law.
   (j) As used in this section, "pretrial or posttrial diversion
program" means any program under Chapter 2.5 (commencing with Section
1000) or Chapter 2.7 (commencing with Section 1001) of Title 6 of
Part 2 of the Penal Code, Section 13201 or 13352.5 of the Vehicle
Code, Sections 626, 626.5, 654, or 725 of, or Article 20.5
(commencing with Section 790) of Chapter 2 of Part 1 of Division 2
of, the Welfare and Institutions Code, or any other program expressly
authorized and described by statute as a diversion program.
   (k) (1) Subdivision (a) shall not apply to any city, city and
county, county, or district, or any officer or official thereof, in
screening a prospective concessionaire, or the affiliates and
associates of a prospective concessionaire for purposes of consenting
to, or approving of, the prospective concessionaire's application
for, or acquisition of, any beneficial interest in a concession,
lease, or other property interest.
   (2) For purposes of this subdivision the following terms have the
following meanings:
   (A) "Screening" means a written request for criminal or juvenile
history information made to a local law enforcement agency.
   (B) "Prospective concessionaire" means any individual, general or
limited partnership, corporation, trust, association, or other entity
that is applying for, or seeking to obtain, a public agency's
consent to, or approval of, the acquisition by that individual or
entity of any beneficial ownership interest in any public agency's
concession, lease, or other property right whether directly or
indirectly held. However, "prospective concessionaire" does not
include any of the following:
   (i) A lender acquiring an interest solely as security for a bona
fide loan made in the ordinary course of the lender's business and
not made for the purpose of acquisition.
   (ii) A lender upon foreclosure or assignment in lieu of
foreclosure of the lender's security.
   (C) "Affiliate" means any individual or entity that controls, or
is controlled by, the prospective concessionaire, or who is under
common control with the prospective concessionaire.
   (D) "Associate" means any individual or entity that shares a
common business purpose with the prospective concessionaire with
respect to the beneficial ownership interest that is subject to the
consent or approval of the city, county, city and county, or
district.
   (E) "Control" means the possession, direct or indirect, of the
power to direct, or cause the direction of, the management or
policies of the controlled individual or entity.
   (  l  ) (1) Nothing in subdivision (a) shall prohibit a
public agency, or any officer or official thereof, from denying
consent to, or approval of, a prospective concessionaire's
application for, or acquisition of, any beneficial interest in a
concession, lease, or other property interest based on the criminal
history information of the prospective concessionaire or the
affiliates or associates of the prospective concessionaire that show
any criminal conviction for offenses involving moral turpitude.
Criminal history information for purposes of this subdivision
includes any criminal history information obtained pursuant to
Section 11105 or 13300 of the Penal Code.
   (2) In considering criminal history information, a public agency
shall consider the crime for which the prospective concessionaire or
the affiliates or associates of the prospective concessionaire was
convicted only if that crime relates to the specific business that is
proposed to be conducted by the prospective concessionaire.
   (3) Any prospective concessionaire whose application for consent
or approval to acquire a beneficial interest in a concession, lease,
or other property interest is denied based on criminal history
information shall be provided a written statement of the reason for
the denial.
   (4) (A) If the prospective concessionaire submits a written
request to the public agency within 10 days of the date of the notice
of denial, the public agency shall review its decision with regard
to any corrected record or other evidence presented by the
prospective concessionaire as to the accuracy or incompleteness of
the criminal history information utilized by the public agency in
making its original decision.
   (B) The prospective concessionaire shall submit the copy or the
corrected record of any other evidence to the public agency within 90
days of a request for review. The public agency shall render its
decision within 20 days of the submission of evidence by the
prospective concessionaire.
   (m)  Subdivision   Paragraph   (1)
of subdivision  (a) does not prohibit an employer from asking an
applicant about a criminal conviction of, seeking from any source
information regarding a criminal conviction of, utilizing as a factor
in determining any condition of employment of, or entry into a
pretrial diversion or similar program by, the applicant if, pursuant
to Section 1829 of Title 12 of the United States Code or any other
state or federal law, any of the following apply:
   (1) The employer is required by law to obtain information
regarding a conviction of an applicant.
   (2) The applicant would be required to possess or use a firearm in
the course of his or her employment.
   (3) An individual who has been convicted of a crime is prohibited
by law from holding the position sought by the applicant, regardless
of whether that conviction has been expunged, judicially ordered
sealed, statutorily eradicated, or judicially dismissed following
probation.
   (4) The employer is prohibited by law from hiring an applicant who
has been convicted of a crime.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.