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 23, 2013 Consultant: Jolie Onodera
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.