BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 530 (Wright) - Criminal offenders: rehabilitation.
          
          Amended: April 15, 2013         Policy Vote: Public Safety 5-2
          Urgency: No                     Mandate: Yes
          Hearing Date: May 6, 2013       Consultant: Jolie Onodera
          
          This bill meets the criteria for referral to the Suspense File.
          
          
          Bill Summary: SB 530 would: 
               Provide that a potential employer may not ask for, seek,  
              or utilize as a factor in determining any condition of  
              employment, information about a conviction that has been  
              expunged, but may ask or seek information about a conviction  
              if otherwise required by law, as specified.
               Eliminate the five-year in-state residency requirement to  
              petition for a certificate of rehabilitation.
               Permit a person with an out-of-state conviction to seek a  
              certificate of rehabilitation in California.   

          Fiscal Impact: 
               Potential increased annual costs to the Department of  
              Industrial Relations (DIR) of about $95,000 (Special Fund*)  
              to review and investigate an increased number of employment  
              complaints for violations of the right not to disclose an  
              expunged conviction.
               Potential increased annual costs to the Department of  
              Justice (DOJ) of $90,000 (General Fund) for increased  
              requests for conviction-related data in response to an  
              increased number of petitions.
               Potential increased annual costs to the courts in the  
              hundreds of thousands to millions of dollars (General  
              Fund**) to review and respond to an increased number of  
              petitions for certificates of rehabilitation. For every 500  
              petitions (less than 10 petitions per county) filed per  
              year, annual costs to the courts to hold hearings are  
              estimated at $1 million, assuming a hearing cost of $2,000.

          *Labor Enforcement Compliance Fund
          ** Trial Court Trust Fund

          Background: Existing law provides for an expungement process in  








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          which a defendant who has fulfilled the terms of probation or  
          parole, or where the court determines that a defendant should be  
          granted relief in the interests of justice, may, at any time  
          after the termination of the period of probation or parole, and  
          upon application, be granted relief in the form of dismissal of  
          the conviction or allowance for the defendant to withdraw his or  
          her guilty plea.

          While granting of the expungement releases a person from  
          penalties resulting from the offense, the release is not  
          absolute. The expunged offense can be used as a prior in  
          consideration of a subsequent conviction. An expungement order  
          does not relieve the petitioner of the obligation to disclose  
          the conviction in response to any question contained in any  
          questionnaire or application for public office or for licensure  
          for any state or local agency. In addition, an order of  
          dismissal does not permit a person to own, possess, or have in  
          his or her custody or control any firearm, or permit a person  
          prohibited from holding public office as a result of that  
          conviction to hold public office.

          Current law provides that no employer, whether a public agency  
          or private individual 
          shall ask an applicant for employment to disclose information  
          concerning an arrest or detention that did not result in  
          conviction, nor shall any employer seek from any source, or  
          utilize, as a factor in determining any condition of employment  
          including, hiring, promotion, termination, or any apprenticeship  
          training program that did not result in conviction, or any  
          record regarding a referral to, and participation in, any  
          pretrial or post trial diversion program. 

          Current law sets forth requirements for a person to file a  
          petition with the court for a certificate of rehabilitation  
          (COR), in which a person convicted of a felony or specified  
          misdemeanor sex offense who has had the conviction expunged, may  
          file a COR petition if the person has not been incarcerated in  
          any prison, jail, detention center since the dismissal of the  
          accusatory pleading and is not on probation for the commission  
          of any other felony, and the petitioner presents satisfactory  
          evidence of five years residence in this state prior to the  
          filing of the petition. Unless the period of rehabilitation has  
          passed, a petitioner is ineligible to file his or her petition  
          for a COR with the court. Under existing law, a person with an  








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          out-of-state conviction is not authorized to seek a certificate  
          of rehabilitation in California.

          Proposed Law: This bill would prohibit the use of a conviction  
          that has been expunged in employment applications, with  
          exceptions, and make changes to the process for certificates of  
          rehabilitation. Specifically, this bill:
               Provides that an employer may not ask about, seek  
              information regarding, or use as a factor in determining  
              condition of employment, the fact that the person has a  
              conviction that has been judicially dismissed, as specified.
               Provides that an employer is not prohibited from asking an  
              applicant about a criminal conviction or seeking from any  
              source information regarding a criminal conviction if  
              because of any state or federal law, any of the following  
              apply:
               o      The employer is required by law to obtain  
                 information regarding a conviction of an applicant.
               o      The applicant would be required to possess or use a  
                 firearm in the course of his or her employment.
               o      An individual convicted of a crime is prohibited by  
                 law 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.
               o      The employer is prohibited by law from hiring an  
                 applicant who has been convicted of a crime.
               Removes the five-year residency requirement for  
              petitioners for certificates of rehabilitation and pardon.
               Permits a person with an out-of-state conviction to seek a  
              certificate of rehabilitation in California.
               Provides that except in a case requiring sex offender  
              registration, a trial court hearing an application for a  
              certificate of rehabilitation before the applicable period  
              of rehabilitation has elapsed may grant the application, per  
              the court's discretion.
               Deletes the requirement that a person must live  
              continuously in the state for five years.
               Provides that if an individual has filed a petition  
              pursuant to the provision that allows a petition to be filed  
              for a crime outside the state and the court finds that the  
              petitioner has demonstrated fitness and rehabilitation  
              requirements by clear and convincing evidence, the court may  
              declare the petitioner rehabilitated. 








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          Staff Comments: This bill will increase court workload and costs  
          to accept and review an increased number of petitions for a COR  
          than otherwise would have been eligible to apply under existing  
          law. While it is unknown how many additional petitions will be  
          filed within any one year due to the provisions of this bill,  
          for every 500 petitions (less than 10 petitions per county)  
          filed per year, annual costs to the courts to hold hearings are  
          estimated at $1 million (General Fund), assuming a hearing cost  
          of $2,000 (based on the average full-day court cost of $4,000). 

          Existing labor law generally prohibits any employer from asking  
          a candidate for employment to disclose any arrest or detention  
          that did not result in conviction.  Existing criminal law  
          permits a defendant who has been convicted of a crime to have  
          the conviction judicially dismissed once the defendant has met  
          certain conditions, including successful completion of  
          probation.  
           
          This bill would further prohibit any employer from asking a  
          candidate for employment about a conviction that has been  
          judicially dismissed except under specified conditions to meet  
          requirements of law or where the employment would require the  
          employee to possess or use a firearm.  
           
          The Retaliation Complaint Investigation (RCI) unit of the  
          Division of Labor Standards Enforcement (DLSE) investigates  
          complaints of violations of approximately 20 statutory rights  
          such as using sick leave to attend to illness of a family  
          member, reporting violations of state or federal law, and  
          freedom from gender-based wage discrimination. Based on data for  
          2009 to 2012, on average, approximately 1,200 cases were filed  
          annually. 
           
          It is estimated that several years after this bill's provisions  
          have been in place, there would be a small number of alleged  
          violations of the new right that would be conferred by this  
          bill. In the near-term, however, there would likely be more  
          violations by employers who are unaware of the new provisions of  
          law. Accordingly, the DSLE could incur an increase in RCI  
          workload of one percent in the first three years, then dropping  
          to a permanent increase of about 0.5 percent as a result of the  
          provisions of this bill. The estimated short-term workload costs  
          to investigate an increased number of complaints are  








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          approximately $95,000 (Labor Enforcement Compliance Fund).

          The DOJ estimates increased annual costs of about $90,000  
          (General Fund) for requests for conviction-related data in  
          response to the increased number of certificate of  
          rehabilitation petitions.

          Recommended Amendments: This bill amends Labor Code (LC) §  
          432.7(a) to prohibit an employer from asking, seeking, or  
          utilizing as a factor in determining any condition of  
          employment, information about a conviction that has been  
          expunged.

          While the provisions added in the new subdivision (m) of LC §  
          432.7 do not prohibit an employer from asking or seeking  
          information about a criminal conviction if otherwise required by  
          law, it does not specify that an employer may utilize that  
          information as a factor in determining any condition of  
          employment. Rather, as currently drafted, it could be  
          interpreted that employers entitled to ask and seek this  
          information would still be subject to the prohibition on the use  
          of that information as a factor in determining employment, as  
          cited in LC § 432.7(a).
           
          For clarity, staff recommends an amendment to LC § 432.7(m) to  
          add the authority for an employer who is otherwise required by  
          law to ask and seek information about a criminal conviction to  
          also, "utilize as a factor in determining any condition of  
          employment," this information.