BILL ANALYSIS �
AB 218
Page 1
ASSEMBLY THIRD READING
AB 218 (Dickinson)
As Amended May 24, 2013
Majority vote
JUDICIARY 6-3 APPROPRIATIONS 12-5
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|Ayes:|Wieckowski, Alejo, Chau, |Ayes:|Gatto, Bocanegra, |
| |Dickinson, Garcia, Stone | |Bradford, |
| | | |Ian Calderon, Campos, |
| | | |Eggman, Gomez, Hall, |
| | | |Ammiano, Pan, Quirk, |
| | | |Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Maienschein, |Nays:|Harkey, Bigelow, |
| |Muratsuchi | |Donnelly, Linder, Wagner |
| | | | |
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SUMMARY : Provides that state and local agencies must determine
a job applicant's minimum qualifications before obtaining and
considering information regarding the applicant's criminal
conviction history. Specifically, this bill :
1)Provides that a state or local agency shall not ask an
applicant for employment to disclose, orally or in writing,
information concerning the conviction history of the
applicant, including any inquiry about conviction history on
any employment application until the agency has determined the
applicant meets the minimum employment qualifications, as
stated in any notice issued for the position.
2)Exempts from this provision all positions for which a state or
local agency is otherwise required by law to conduct a
conviction history background check, any position within a
criminal justice agency, as that term is defined in Penal Code
Section 13101, and any individual working on a temporary or
permanent basis for a criminal justice agency on a contract
basis or on loan from another governmental entity.
3)Specifies that this section shall not be construed to prevent
a state or local agency from conducting a conviction history
background check after complying with the provisions above.
AB 218
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4)Provides that these provisions become operative on July 1,
2014.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, many or most local agencies will have to adjust the
hiring processes, for positions not otherwise exempt, to conform
to the bill's requirements. This could entail revising paper
and online application forms and modifying human resource
policies and procedures. Though the bill imposes a reimbursable
state mandate, these initial costs for any single government
entity should not, on average, be significant and it is
questionable whether many local governments would submit a
mandate claim for making these modifications, particularly since
the operative date will be almost nine months following
enactment. Once compliant procedures are established, it is
assumed any ongoing costs will be absorbed by the local
agencies.
COMMENTS : According to the author, "AB 218 will help to level
the playing field for qualified Californians seeking employment
and will promote public safety by reducing unnecessary job
barriers for the nearly seven million adult Californians with a
criminal record. Thousands of qualified job applicants in our
state are plagued by old or minor records and discouraged from
applying to employment because a 'box' on job applications
requires criminal history information that leads many employers
to unfairly reject job applications. AB 218 removes unnecessary
obstacles to employment for skilled, qualified workers who have
turned their lives around. All of California will benefit when
people with criminal records are no longer shut out of jobs and
can financially support their families and contribute to a
strong economic recovery."
This bill does not prohibit or otherwise limit a state or local
agency from conducting a criminal background check or making
employment decisions on the basis of an applicant's prior
convictions. It simply restricts when that inquiry may be
conducted. Under the bill, a covered employer may ask an
applicant for employment to disclose information concerning his
or her conviction history, and may conduct a criminal background
investigation, so long as they do so after they have determined
the applicant meets the minimum employment qualifications.
AB 218
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Employers should of course continue to approach these decisions
with care to avoid violating employment discrimination laws,
which require that job requirements be justified when they fall
more heavily on some groups. The bill does not affect existing
law requiring that employment standards be related to the job.
Supporters note that people of color are more likely than whites
to possess a criminal record and are especially hard hit by
criminal record screening in employment. Supporters cite two
prominent studies which found that a criminal record reduces the
likelihood of a job callback or offer by about 50% (28% vs.
15%). This criminal record "penalty" was substantially greater
for African Americans and Latinos in the test pool.
The U.S. Equal Employment Opportunity Commission (EEOC) has
recognized in policy guidance issued in April 2012 that there
are observable racial disparities in the criminal justice
system. Because criminal background checks may have a disparate
impact on people of color, federal employment discrimination law
prohibits no-hire policies against people with criminal records.
An employer's consideration of a conviction history may pass
muster if an individualized assessment is made, taking into
account whether the conviction is job-related and the time
passed since the conviction. An employer therefore risks
violating federal civil rights laws when it cannot articulate an
objective and well-supported reason why the use of a criminal
record to disqualify an applicant is related to the functions of
the job. Thus, removing the inquiry about conviction history
from the initial job application promotes a case-by-case
assessment of the applicant, which is more consistent with the
law. In keeping with the policy embodied by this bill, the EEOC
guidance states: "As a best practice, and consistent with
applicable laws, the Commission recommends that employers not
ask about convictions on job applications and that, if and when
they make such inquiries, the inquiries be limited to
convictions for which exclusion would be job related for the
position in question and consistent with business necessity."
Moreover, the bill contains a broad exemption for any position
for which a state or local agency is otherwise required by law
to conduct a conviction history background check, as well as any
position within a criminal justice agency or to any individual
working on a temporary or permanent basis for a criminal justice
agency on a contract basis or on loan from another governmental
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entity. This bill uses the existing definition of "criminal
justice agencies," those agencies at all levels of government
that perform as their principal functions, activities which
either relate to the apprehension, prosecution, adjudication,
incarceration, or correction of criminal offenders or relate to
the collection, storage, dissemination or usage of criminal
offender record information.
Opponents recognize that the bill provides exemptions, but argue
that these are too limiting.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0000943