BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 530
                                                                  Page 1

          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