BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 218|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 218
Author: Dickinson (D)
Amended: 5/24/13 in Assembly
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 3-1, 6/26/13
AYES: Monning, Leno, Yee
NOES: Wyland
NO VOTE RECORDED: Padilla
SENATE JUDICIARY COMMITTEE : 4-2, 7/2/13
AYES: Corbett, Jackson, Leno, Monning
NOES: Walters, Anderson
NO VOTE RECORDED: Evans
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/30/13
AYES: De León, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
ASSEMBLY FLOOR : 48-29, 5/30/13 - See last page for vote
SUBJECT : Employment applications: criminal history
SOURCE : All of Us or None
Legal Services for Prisoners with Children
National Employment Law Project
PICO California
DIGEST : This bill requires that state and local agencies
determine a job applicant's minimum qualifications before
CONTINUED
AB 218
Page
2
obtaining and considering information regarding the applicant's
conviction history on an employment application.
ANALYSIS : Existing law prohibits both public and private
employers from asking an applicant for employment to disclose
either in writing or verbally, any information concerning an
arrest or detention that did not result in a conviction. Among
other things, this prohibition in existing law specifies that:
1.As used for this purpose, a conviction includes a plea,
verdict, or finding of guilt regardless of whether a sentence
is imposed by the court.
2.Nothing prohibits a government agency employing a peace
officer, or a health facility hiring for a position with
access to patients and/or drugs and medications, from asking
for arrest information, as specified.
3.A violation of this prohibition by a prospective employer
allows the applicant to bring an action to recover from that
person damages, as specified. Intentional violations are
considered a misdemeanor punishable by a fine not to exceed
$500.
Existing law, with regards to legal employment practices, also
provides the following:
1.Protects employees, both prospective and current, against
employment discrimination when it involves unfair treatment
because of a person's race, color, religion, sex, national
origin, age, disability or genetic information.
2.Prohibits employers from discriminating, discharging or
refusing to hire an employee based on an employee's lawful
conduct during nonworking hours away from the employer's
premises.
3.Prohibits an employer from requiring or requesting an employee
or applicant for employment to disclose a username or password
for the purpose of accessing personal social media content, as
specified.
4.Restricts the use, with some exceptions, of credit information
for employment purposes.
CONTINUED
AB 218
Page
3
5.Prohibits employers from requiring applicants to submit to
polygraph, lie detector, or similar tests as a condition of
employment.
This bill requires that state and local agencies determine a job
applicant's minimum qualifications before obtaining and
considering information regarding the applicant's conviction
history on an employment application.
Specifically, this bill:
1.Commencing July 1, 2014, prohibits a state or local agency
from asking an applicant for employment to disclose, orally or
in writing, information concerning the conviction history of
the applicant until the agency has determined that he/she
meets the minimum employment qualifications, as stated in any
notice issued for the position.
2.Exempts from this prohibition, a position 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 specified, 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 bill does not prevent a state or local
agency from conducting a conviction history background check
after complying with the provisions above.
4.Establishes several findings and declarations in support of
this policy.
Comments
The U.S. Equal Employment Opportunity Commission (EEOC) is
responsible for enforcing federal laws that make it illegal to
discriminate against a job applicant or an employee because of
the person's race, color, religion, sex (including pregnancy),
national origin, age (40 or older), disability or genetic
information. In April 2012, the EEOC issued its "Enforcement
Guidance on the Consideration of Arrest and Conviction Records
in Employment Decisions," with the purpose of consolidating and
updating EEOC's guidance documents regarding the use of arrest
or conviction records in employment decisions. An employer's
CONTINUED
AB 218
Page
4
use of an individual's criminal history in making employment
decisions may, in some instances, violate the prohibition
against employment discrimination. According to the EEOC,
national data supports a finding that criminal record exclusions
have a disparate impact based on race and national origin.
The EEOC's guidance makes a clear distinction between arrest and
conviction records. According to the EEOC, the fact of an
arrest does not establish that criminal conduct has occurred,
and an exclusion based on an arrest, in itself, is not job
related and consistent with business necessity. In contrast, a
conviction record will usually serve as sufficient evidence that
a person engaged in particular conduct. However, 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 may risk violating federal law if
he/she cannot articulate an objective and well-supported reason
for why the use of a criminal record to disqualify an applicant
is related to the functions of the job.
According to EEOC, "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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
The State has over 6,000 local governmental entities
(including county governments, cities, and special districts).
This bill requires an unknown number of them to make
modifications to their hiring process, potentially consisting
of revising forms, training staff and updating personnel
policies and procedures.
Thus, this bill could result in a reimbursable state mandate
for a local governmental entity that submits a claim (for
incurring costs exceeding $1,000). While the number of local
jurisdictions submitting claims is unknown, the total cost is
CONTINUED
AB 218
Page
5
likely to exceed $50,000 (General Fund) on a one-time basis.
Once revised forms and procedures are in place, ongoing costs
are likely to be minor and absorbable.
The Department of Industrial Relations estimates that it would
require $15,000 (special funds) to implement the provisions of
this bill.
SUPPORT : (Verified 8/30/13)
All of Us or None (co-source)
Legal Services for Prisoners with Children (co-source)
National Employment Law Project (co-source)
PICO California (co-source)
9to5 California, National Association of Working Women
A New Way of Life Reentry Project
ACLU of California
AFSCME
Alameda County Board of Supervisors
All of Us or None AV-Kern County Chapter
All of Us or None -Sacramento Chapter
All of Us or None San Diego
All of Us or None, Los Angeles/Long Beach
Amalgamated Transit Union, California
Asian and Pacific Islanders California Action Network
AV-East Kern Second Chance
Bayview Baptist Church
California Attorneys for Criminal Justice
California Catholic Conference of Bishops
California Coalition for Women Prisoners
California Communities United Institute
California Conference of Machinists
California Correctional Peace Officers Association
California Drug Counseling, Inc.
California Employment Lawyers Association
California Labor Federation
California NAACP
California Partnership
California Prison Focus
California Public Defenders Association
California Reform Sex Offender Laws
California Teamsters Public Affairs Council
Californians for Safety and Justice
Californians United for a Responsible Budget
CONTINUED
AB 218
Page
6
Center for Young Women's Development
Center on Juvenile and Criminal Justice
Chrysalis
Cities of Berkeley and Richmond
City and County of San Francisco
City of Carson Mayor, Jim Dear
Coalition on Homelessness
Community Coalition
Congregations Organizing for Renewal
Contra Costa Interfaith Supporting Community Organization
Crossroad Bible Institute
Drug Policy Alliance
East Bay Alliance for a Sustainable Economy
East Bay Community Law Center
Ella Baker Center for Human Rights
Engineers and Scientists of California
Equal Justice Society
Equal Rights Advocates
Friends Committee on Legislation of California
Glendale City Employees Association
Greenlining Institute
Homies Unidos
InnerCity Struggle
Justice First, LLP
Justice Not Jails
Justice Now
LA Voice
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Aid Society-Employment Law Center
Los Angeles Alliance for a New Economy
Los Angeles Mayor, Eric Garcetti
Los Angeles Regional Reentry Partnership
Mexican American Legal Defense and Educational Fund
Much More Bounce Inc. /Ministries
National Association of Social Workers - California Chapter
National Council of La Raza
National H.I.R.E. Network
NMT/The Ripple Effects
Oakland Rising
Organization of SMUD Employees
Pacific Institute
Parents for Addiction Treatment and Healing
PolicyLink
CONTINUED
AB 218
Page
7
Professional and Technical Engineers, Local 21
Public Counsel
Richmond Chief of Police, Chris Magnus
Sacramento Area Congregations Together
Saffron Strand, Inc.
San Bernardino Public Employees Association
San Francisco District Attorney, George Gascón
San Francisco Mayor, Edwin Lee
San Luis Obispo County Employees Association
Sanmina Corporation
Santa Clara County
Santa Clara County Board of Supervisors
Santa Rosa City Employees Association
SEIU Local 1000
Sentencing Project
SHIELDS For Families
Starting Over Inc.
Straight Talk Program, Inc.
Training Center
Transgender Law Center
UNITE HERE!
United Food and Commercial Workers Union, Western States
University of California Student Association
Utility Workers Union of America, Local 132
Western Center on Law & Poverty
Women's Council of the California Chapter of The National
Association of Social Workers
Women's Foundation of California
Youth Justice Coalition
Youth Policy Institute
OPPOSITION : (Verified 8/30/13)
Association of California Cities - Orange County
Association of California Water Agencies
California District Attorneys Association
California Special Districts Association
California State Association of Counties
City of Camarillo
Costa Mesa Sanitary District Board of Directors
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Lassen County
CONTINUED
AB 218
Page
8
League of California Cities
Los Angeles County Board of Supervisors
Newhall County Water District
Orchard Dale Water District
Rowland Water District
Rural County Representatives of California
Solano County Board of Supervisors
Southwest California Legislative Council
ARGUMENTS IN SUPPORT : According to the author, an estimated
one in four adult Californians has an arrest or conviction
record on file with the state, creating major, unnecessary
employment barriers. Because criminal background checks
disproportionately deny employment to large numbers of people of
color, the EEOC requires employers to establish a strong nexus
between an individual's conviction history and the specific
responsibilities of the job. Proponents argue, old or minor
records, such as nonviolent drug offenses, are impeding
qualified job applicants' ability to find employment. They
argue that the mere existence of a "box" on a job application
that asks if the applicant has a criminal history, leads
employers to dismiss applicants at the outset even where an
individual possesses the skills, work ethic, and qualifications
to do the job.
Further, they argue that the discrimination experienced by
individuals with old criminal convictions is well documented,
and a wide body of research demonstrates that the consequences
of a criminal conviction on opportunities for employment are
particularly severe. For example, they cite a study of hiring
practices which shows that in nearly 50% of cases, employers
were unwilling to consider equally qualified applicants on the
basis of their criminal record. They argue that people of color
are especially hit by criminal background checks, and are even
less likely to be considered for employment than white
applicants with criminal convictions.
According to the author, realignment of California's criminal
justice system seeks to produce budgetary savings by reducing
recidivism and promoting rehabilitation. However, the author
believes, employment of eligible people with a conviction
history is key to the success of realignment at the local level,
as studies have shown that stable employment significantly
lowers recidivism and promotes public safety. This bill would
remove any inquiry into a conviction history on a job
CONTINUED
AB 218
Page
9
application and delay any background check until the employer
has determined that the applicant's qualifications meet the job
requirements. The author believes this bill would make
government hiring practices more consistent with realignment and
with the EEOC's guidelines.
ARGUMENTS IN OPPOSITION : According to opponents of the
measure, since the Governor's prison realignment bill, many
lower level offenders are being released into the public and
entering the job market and although many are not opposed to
hiring low level offenders, what they do believe is that these
decisions should be left to local jurisdictions and not
subverted by state-led requirements. This bill prohibits local
governments from inquiring about criminal history on initial
employment applications. Opponents argue that many local
agencies will be wasting time and limited resources screening
initial applicants for minimum eligibility that most certainly
will be rejected once an applicant's criminal history is
disclosed.
Opponents understand that the primary goal of the bill is to
create more job opportunities for individuals with criminal
convictions; however, they believe the bill does not ensure that
it will accomplish that objective. Instead, they argue, this
bill would create unnecessary delays and increased costs in
hiring procedures. They also note that some counties have
already initiated similar efforts, but argue that these policies
have been tailored to best serve their needs and were done
without a legislative mandate. Overall, opponents believe this
bill would take away local discretion over hiring practices that
should be dealt with at the local level.
ASSEMBLY FLOOR : 48-29, 5/30/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Chávez, Chesbro, Cooley, Daly, Dickinson,
Eggman, Fong, Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon,
Hall, Roger Hernández, Jones-Sawyer, Levine, Lowenthal,
Medina, Mitchell, Mullin, Nazarian, Pan, V. Manuel Pérez,
Quirk, Rendon, Skinner, Stone, Ting, Weber, Wieckowski,
Williams, Yamada, John A. Pérez
NOES: Achadjian, Allen, Bigelow, Conway, Dahle, Donnelly, Fox,
Beth Gaines, Gorell, Grove, Hagman, Harkey, Jones, Linder,
Logue, Maienschein, Mansoor, Melendez, Morrell, Muratsuchi,
CONTINUED
AB 218
Page
10
Nestande, Olsen, Patterson, Perea, Quirk-Silva, Salas, Wagner,
Waldron, Wilk
NO VOTE RECORDED: Gray, Holden, Vacancy
PQ:ej 8/31/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED