BILL ANALYSIS Ó
SB 530
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Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 530 (Wright) - As Amended: June 19, 2013
SENATE VOTE : 26-10
SUBJECT : EMPLOYMENT: EXPUNGED PRIOR CONVICTIONS
KEY ISSUE : SHOULD EMPLOYERS GENERALLY BE PRECLUDED FROM
CONSIDERING A JOB APPLICANT'S PRIOR CRIMINAL CONVICTION WHEN THE
CONVICTION HAS BEEN JUDICIALLY EXPUNGED, SUBJECT TO EXCEPTIONS
WHERE THE CONVICTION IS RELATED TO PERFORMANCE OF THE JOB?
FISCAL EFFECT : As currently in print this bill keyed fiscal.
SYNOPSIS
The purpose of this bill is to generally preclude employers from
considering a prior criminal conviction of a job applicant where
the conviction has been expunged, subject to certain exceptions.
Employers are currently prohibited from asking about or making
employment decisions regarding arrests that do not result in
conviction, as well as participation in criminal diversion
programs. This bill would expand the existing prohibition to
prior convictions that have been dismissed by a court. However,
the bill recognizes exceptions where the expunged conviction is
related to job performance. Supporters argue that an
expungement is intended to result in dismissal of the
accusations and release from all penalties and disabilities
resulting from the offense. If the expunged conviction is used
for employment purposes, supporters argue, it continues to be a
significant barrier to economic self-sufficiency and
integration. The bill has no known opposition.
SUMMARY : Excludes prior criminal convictions from consideration
in employment decisions when the conviction has been judicially
dismissed. Specifically, this bill :
1)Provides that an employer may generally not ask about or use
as a factor in determining a condition of employment the fact
that an applicant for employment has a prior conviction that
has been judicially dismissed pursuant to existing statutory
authority.
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2)Provides however that an employer is not prohibited from
asking an applicant about a criminal conviction or seeking
from any source information regarding a criminal conviction,
or entry into a pretrial diversion, or similar program by the
applicant, if because of any state or federal law any of the
following apply:
a) The employer is required by law to obtain information
regarding a conviction of an applicant.
b) The applicant would be required to possess or use a
firearm in the course of his or her employment.
c) An individual who has been 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.
d) The employer is prohibited by law from hiring an
applicant who has been convicted of a crime.
3)Authorizes a trial court hearing an application for a
certificate of rehabilitation before the applicable period of
rehabilitation has elapsed to grant the application if the
court, in its discretion, believes relief serves the interests
of justice.
4)Exempts from dissemination by the Department of Justice
convictions which have been judicially dimissed when summary
criminal history information is provided to employers, as
specified.
EXISTING LAW :
1)Provides that no employer, whether a public agency or private
individual or corporation, shall ask an applicant for
employment to disclose, through any written form or verbally,
information concerning an arrest or detention that did not
result in conviction, or information concerning a referral to,
and participation in, any pretrial or post trial diversion
program, nor shall any employer seek from any source
whatsoever, or utilize, as a factor in determining any
condition of employment including, hiring, promotion,
termination, or any apprenticeship training program or any
other training program leading to employment, record of arrest
or detention that did not result in conviction, or any record
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regarding a referral to, and participation in, any pretrial or
post trial diversion program. (Labor Code section 432.7.)
2)Provides for a process for a court to allow a defendant to
withdraw his or her plea or set aside verdict of guilty and
dismiss the accusation or information if the defendant has
fulfilled the conditions of probation for the entire period of
probation, or who has been discharged prior to the termination
for the period of probation, or in any other case in which the
interests of justice, determines that a defendant should be
granted relief available. (Penal Code section 1203.4.)
3)Sets forth the requirements for a person to file a petition
for a certificate of rehabilitation. (Penal Code section
4852.01) and provides that unless and until the period of
rehabilitation has passed, the petitioner shall be ineligible
to file his or her petition for a certificate of
rehabilitation with the court. Any certificate of
rehabilitation that is issued and under which the petitioner
has not fulfilled the requirements shall be void. (Penal Code
§ 4852.03 (b).)
4)Requires the Department of Justice to maintain state summary
criminal history information, including the identification and
criminal history of any person. Existing law requires the
department to disseminate this information in response to a
request from certain authorized agencies, organizations, or
individuals that need the information to fulfill employment,
certification, or licensing duties, such as the employment of
peace officers or the licensing of community care facilities.
(Penal Code section 11105.)
COMMENTS : The author explains the reason for the bill as
follows:
SB 530 is intended to close some loopholes and provide
additional tools and changes to existing law to make
effective the existing state policy to remove employment
barriers to those who have committed crimes that have been
expunged by the courts. Court approved expungement was
intended to allow a job applicant the ability to not have
to report minor crimes expunged. The way this is currently
reported employers can still determine a crime has been
committed. SB 530 will correct this as well as give the
courts additional discretion in the interest of justice to
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grant certificates of rehabilitation that do not meet the
current time requirements. If we want to break the
revolving door cycle of crime we must give folks a fair
chance at a job without the discrimination of having a
criminal record.
Existing Law Permits Expungement of Prior Convictions In Certain
Circumstances. Existing law provides for an expungement
process. A person can seek to have dismissed an accusation or
information after he or she has fulfilled his or her probation
or parole period. While granting of the expungement releases a
person from all penalties and disabilities resulting from the
offense, the release is not absolute. The expunged offense can
still be used as a prior conviction for the purposes of a
subsequent conviction and for other specified purposes - for
example, owning a firearm or holding public office.
This Bill Would Generally Preclude Consideration of Expunged
Convictions When An Applicant Seeks Employment, Subject to
Exceptions Where The Conviction Is Related To Performance Of The
Job. The author argues that while a person is supposed to be
relieved of the disabilities of an expunged offense, the
continued consideration of this history by employers interferes
with the ability of many to fully rehabilitate by gaining
employment.
This bill would amend the Labor Code to provide that in addition
to not being able to ask or use information on an applicant
about arrests that did not result in conviction or participation
in diversion, as provided by current law, an employer generally
cannot ask about or use information regarding a conviction that
has been judicially dismissed. Because these expunged
convictions are not to be sought or considered, the bill further
provides that these convictions are to be excluded when the
Department of Justice provides criminal history information to
employers, as specified.
However, this general rule would recognize a number of
exceptions where an expunged conviction is related to
performance of the job - specifically where:
(1) The employer is required by law to obtain information
regarding a conviction of an applicant.
(2) The applicant would be required to possess or use a
firearm in the course of his or her employment.
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(3) An individual who has been 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.
(4) The employer is prohibited by law from hiring an applicant
who has been convicted of a crime.
Proposed Author's Amendments To Be Taken In Next Committee. To
appropriately narrow and clarify the bill, the author proposes
to delete the Family Code provisions and to revise the Labor
Code and Penal Code provisions as indicated below. In order to
facilitate consideration of the bill by the Appropriations
Committee, the amendments will be taken when the bill is heard
there.
Labor Code section 432.7. (a) No employer, whether a public
agency or private individual or corporation, shall ask an
applicant for employment to disclose, through any written form
or verbally, information concerning an arrest or detention that
did not result in conviction, or information concerning a
referral to, and participation in, any pretrial or posttrial
diversion program, or concerning a conviction that has been
judicially dismissed pursuant to statute, including but not
limited to Section sections 1203.4, 1203.4a, 1203.45 and 1210.1
of the Penal Code, nor shall any employer seek from any source
whatsoever, or utilize, as a factor in determining any condition
of employment including hiring, promotion, termination, or any
apprenticeship training program or any other training program
leading to employment, any record of arrest or detention that
did not result in conviction, or any record regarding a referral
to, and participation in, any pretrial or posttrial diversion
program, or concerning a conviction that has been judicially
dismissed pursuant to Section 1203.4 of the Penal Code. As used
in this section, a conviction shall include a plea, verdict, or
finding of guilt regardless of whether sentence is imposed by
the court. Nothing in this section shall prevent an employer
from asking an employee or applicant for employment about an
arrest for which the employee or applicant is out on bail or on
his or her own recognizance pending trial.
Likewise amend subsections (m), (n), (o) and (p) of Penal Code
section 11105 as follows: ? except a conviction for which the
applicant has been granted relief pursuant to Section sections
1203.4, 1203.4(a), 1203.45 and 1210.1.
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Pending Related Legislation. AB 218 (Dickinson) provides that
state and local agencies must generally determine a job
applicant's minimum qualifications before obtaining and
considering information regarding the applicant's criminal
conviction history, subject to certain exceptions. That measure
passed this Committee and is currently pending in the Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
A New Way of Life Reentry Project
California Attorneys for Criminal Justice
California Public Defenders Association
Clean Slate Practice of the East Bay Community Law Center
Congress of Racial Equality of California (CORE-CA)
East Bay Community Law Center
Foundation for Continuing Justice
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
National Employment Law Project
Taxpayers for Improving Public Safety
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334