BILL ANALYSIS Ó
AB 1650
Page 1
ASSEMBLY THIRD READING
AB 1650 (Jones-Sawyer)
As Amended May 28, 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 |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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 the
extent that the employer obtains workers from a hiring hall
pursuant to a bona fide collective bargaining agreement.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
AB 1650
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1)To the extent the bill's requirement would dissuade
noncompliant contractors from bidding on some state public
works contracts, 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
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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 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,
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adjudication, incarceration, or correction of criminal offenders
or relate to the collection, storage, dissemination or usage of
criminal offender record information.
The bill also provides that this prohibition does not apply to
the extent that the employer obtains workers from a hiring hall
pursuant to a bona fide collective bargaining agreement.
Presumably these agreements will be consistent with the
provisions of this bill, at least prospectively.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0003892