BILL NUMBER: AB 3063	ENROLLED
	BILL TEXT

	PASSED THE SENATE  AUGUST 14, 2008
	PASSED THE ASSEMBLY  AUGUST 18, 2008
	AMENDED IN SENATE  JULY 10, 2008
	AMENDED IN SENATE  JUNE 17, 2008
	AMENDED IN ASSEMBLY  MAY 28, 2008
	AMENDED IN ASSEMBLY  APRIL 14, 2008

INTRODUCED BY   Committee on Labor and Employment (Swanson (Chair),
DeSaulnier, Fuentes, Laird, Leno, and Ruskin)

                        MARCH 3, 2008

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



	LEGISLATIVE COUNSEL'S DIGEST


   AB 3063, Committee on Labor and Employment. Employment: criminal
history.
   Existing law provides that an employer may not ask an applicant
for employment to disclose, and an employer may not utilize in an
employment-related decision, information concerning an arrest or
detention that did not result in a conviction or information
concerning participation in a pretrial or posttrial diversion
program.
   This bill, in addition, would prohibit an employer from asking an
applicant for employment to disclose, or utilizing in an
employment-related decision, information concerning a criminal
conviction the record of which has been judicially ordered sealed,
expunged, or statutorily eradicated, or information concerning a
misdemeanor conviction for which probation has been successfully
completed or otherwise discharged and the case has been judicially
dismissed.
    This bill would provide exceptions to the prohibition on asking
applicants about a criminal conviction or entry into a pretrial
diversion or similar program, if state or federal law requires an
employer to obtain information regarding an applicant's criminal
convictions, requires the applicant to possess or use a firearm in
the position applied for, prohibits an individual convicted of a
crime from holding the position applied for, or prohibits the
employer from hiring an applicant who has been convicted of a crime.
The bill would further provide that specified provisions of the Labor
Code shall not be construed to prohibit a credit union employer from
complying with the Federal Credit Union Act or the California Credit
Union Law.
   Existing law makes an intentional violation of these provisions a
misdemeanor and subjects offenders to criminal penalties.
   This bill would impose a state-mandated local program by creating
additional crimes.
   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.
   This bill would declare that it is the intent of the Legislature
to codify certain regulations of the Fair Employment and Housing
Commission and that the amendments to existing provisions set forth
in the bill are declaratory of existing law.


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) Except as otherwise provided by law, an employer,
whether a public agency, private individual, or corporation, shall
not ask an applicant for employment to disclose, in writing or
verbally, information concerning an arrest or detention that did not
result in a conviction, information concerning a referral to, and
participation in, any pretrial or posttrial diversion program,
information concerning a conviction the record of which has been
judicially ordered sealed, expunged, or statutorily eradicated, or
information concerning a misdemeanor conviction for which probation
has been successfully completed or otherwise discharged and the case
has been judicially dismissed pursuant to Section 1203.4 of the Penal
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,
any record regarding a referral to, and participation in, any
pretrial or posttrial diversion program, any record concerning a
conviction the record of which has been judicially ordered sealed,
expunged, or statutorily eradicated, or any record concerning a
misdemeanor conviction for which probation has been successfully
completed or otherwise discharged and the case has been judicially
dismissed pursuant to Section 1203.4 of the Penal Code. As used in
this section, a conviction includes a plea, verdict, or finding of
guilt, regardless of whether a sentence is imposed by the 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.
   (b) This section does not 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) If 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 aggrieved 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 are in addition to and not in
derogation of all other rights and remedies that an applicant may
have under any other law.
   (e) This section does not apply to a person seeking employment or
already employed as a peace officer, or a person seeking employment
for a position in the Department of Justice or other criminal justice
agencies as defined in Section 13101 of the Penal Code.
   (f) This section does not 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 a 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 a section specified
in Section 11590 of the Health and Safety Code.
   (g) (1) A peace officer or employee of a law enforcement agency
with access to criminal offender record information maintained by a
local law enforcement criminal justice agency shall not knowingly
disclose, with the 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 and participation in a pretrial
or posttrial diversion program, to a person not authorized by law to
receive that information.
   (2) No other person authorized by law to receive criminal offender
record information maintained by a local law enforcement criminal
justice agency shall knowingly disclose any information received
therefrom pertaining to an arrest or detention or a proceeding that
did not result in a conviction, including information pertaining to a
referral to and participation in a pretrial or posttrial diversion
program, to a person not authorized by law to receive that
information.
   (3) Except for those persons specifically referred to in Section
1070 of the Evidence Code, a person who knows that he or she is not
authorized by law to receive or possess criminal justice records
information maintained by a local law enforcement criminal 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 a pretrial or posttrial diversion
program, shall not receive or possess that information.
   (h) "A person authorized by law to receive that information," for
purposes of this section, means a person or public agency authorized
by a court, statute, or decisional law to receive information
contained in criminal offender records maintained by a local law
enforcement criminal justice agency, and includes those persons
identified in Section 11105 of the Penal Code, and any person
employed by a law enforcement criminal justice agency who is required
by that employment to receive, analyze, or process criminal offender
record information.
   (i) This section does not 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 a 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, or any other program expressly authorized and described by
statute as a diversion program.
   (k) (1) Subdivision (a) does not apply to a city, city and county,
county, or district, or an 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
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 history
information made to a local law enforcement agency.
   (B) "Prospective concessionaire" means an 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 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 an 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 an 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.
   () (1) Subdivision (a) does not prohibit a public agency, or an
officer or official thereof, from denying consent to, or approval of,
a prospective concessionaire's application for, or acquisition of, a
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 a criminal conviction for offenses involving
moral turpitude. Criminal history information for purposes of this
subdivision includes 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) A 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 (a) does not prohibit an employer, including a
local agency, from asking an applicant about a criminal conviction or
seeking from any source information regarding a criminal conviction
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 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
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 from hiring an applicant who has
been convicted of a crime.
   (n) Subdivision (a) shall not be construed to prohibit a credit
union employer from complying with its statutory obligations under
the Federal Credit Union Act (12 U.S.C. Sec. 1751 et seq.) or the
California Credit Union Law (Division 5 (commencing with Section
14000) of the Financial Code).
  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.
  SEC. 3.  It is the intent of the Legislature to codify subdivision
(d) of Section 7287.4 of Title 2 of the California Code of
Regulations. The Legislature finds and declares that the amendments
to Section 432.7 of the Labor Code set forth in this measure are
declaratory of existing law.