BILL ANALYSIS                                                                                                                                                                                                    



                                                                AB 1650
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        ASSEMBLY THIRD READING
        AB 1650 (Jones-Sawyer)
        As Amended May 23, 2014
        Majority vote 

         JUDICIARY           10-0        APPROPRIATIONS      13-0        
         
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        |Ayes:|Wieckowski, Wagner,       |Ayes:|Gatto, Bocanegra,         |
        |     |Alejo, Chau, Dickinson,   |     |Bradford,                 |
        |     |Garcia, Gorell,           |     |Ian Calderon, Campos,     |
        |     |Maienschein, Muratsuchi,  |     |Eggman, Gomez, Holden,    |
        |     |Stone                     |     |Pan, Quirk,               |
        |     |                          |     |Ridley-Thomas, Wagner,    |
        |     |                          |     |Weber                     |
        |-----+--------------------------+-----+--------------------------|
        |     |                          |     |                          |
         ----------------------------------------------------------------- 
        SUMMARY  :  Provides that state contractors must determine an on-site  
        construction-related job applicant's minimum qualifications before  
        obtaining and considering information regarding the applicant's  
        criminal conviction history.  Specifically,  this bill  :  

        1)Provides that the any person submitting a bid to the state on a  
          contract involving onsite construction-related services shall  
          certify that the person does not ask an applicant for onsite  
          construction-related employment to disclose orally or in writing  
          information concerning the conviction history of the applicant on  
          or at the time of an initial employment application.

        2)Specifies that this prohibition does not apply to a position for  
          which the person or state agency is otherwise required by state or  
          federal law to conduct a conviction history background check or to  
          any contract position with a criminal justice agency, as that term  
          is defined in Penal Code Section 13101.

        3)Further provides that this prohibition does not apply to a person  
          that has a collective bargaining agreement with its employees that  
          is consistent with the provisions of this section.

         FISCAL EFFECT  :  According to the Assembly Appropriations Committee:

        1)To the extent the bill's requirement would dissuade noncompliant  
          contractors from bidding on some state public works contracts,  








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          there would be reduced competition, which tends to increase  
          contract costs somewhat.  Since the bill does not completely  
          prohibit a contractor from inquiring about an applicant's  
          conviction history-only from doing so during the initial  
          application process-it is assumed that most contractors would  
          adjust their practices accordingly in order to continue seeking  
          state contracts.  Nevertheless, given that state public works  
          contracts total several billion dollars annually, the impact  
          describe above could be sufficient to increase contract costs by  
          more than $150,000 annually.

        2)The state may incur investigation-related costs to the extent it  
          is presented with information that a bidder was not in compliance  
          with the bill's requirements.  The number of such cases is  
          unknown, but the costs could be significant, involving  
          investigative personnel and legal staff.

        3)If a state contractor was subsequently found to have been in  
          violation of the bill's requirements, there could be additional  
          costs to void the contract and engage another contractor.

         COMMENTS  :  According to the author, "This bill is attempting to  
        address three issues: (1) discriminatory employment practices for  
        individuals with prior criminal convictions (2) extremely high  
        unemployment rates for individuals with criminal backgrounds (3)  
        high recidivism rates within California."

        Existing law as the result of AB 218 (Dickinson), Chapter 699,  
        Statutes of 2013, 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.  Like this bill, this public employment rule does  
        not apply to positions for which a state or local agency is  
        otherwise required by law to conduct a conviction history background  
        check, to any position within a criminal justice agency, as that  
        term is defined in Penal Code Section 13101, 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  
        entity.  These rules go into effect on July 1, 2014.

        This bill does not prohibit or otherwise limit a state contractor  








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        who employs on-site construction-related employees from conducting a  
        criminal background check or making employment decisions on the  
        basis of an applicant's prior convictions.  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.  This bill does not affect existing law requiring that  
        employment standards be related to the job. 

        The United States 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 AB 218, 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 contractor or a government agency is otherwise  
        required by law to conduct a conviction history background check, as  
        well as any contract position within a criminal justice agency.  The  
        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.  
         








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        Analysis Prepared by  :  Kevin G. Baker / JUD. / (916) 319-2334 

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