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 SB 530 (Wright) Page 1 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 SB 530 (Wright) Page 2 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. SB 530 (Wright) Page 3 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 SB 530 (Wright) Page 4 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.