BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 530
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          SENATE THIRD READING
          SB 530 (Wright)
          As Amended  August 30, 2013
          Majority vote 

           SENATE VOTE  :26-10  
           
           JUDICIARY           6-3         APPROPRIATIONS      12-5        
           
           ----------------------------------------------------------------- 
          |Ayes:|Wieckowski, Alejo, Chau,  |Ayes:|Gatto, Bocanegra,         |
          |     |Dickinson, Garcia, Stone  |     |Bradford,                 |
          |     |                          |     |Ian Calderon, Campos,     |
          |     |                          |     |Eggman, Gomez, Hall,      |
          |     |                          |     |Holden, Pan, Quirk, Weber |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Wagner, Gorell,           |     |                          |
          |     |Maienschein               |Nays:|Harkey, Bigelow,          |
          |     |                          |     |Donnelly, Linder, Wagner  |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           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.

          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  








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               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.
           


          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  
            regarding a referral to, and participation in, any pretrial or  
            post trial diversion program.  

          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.    

          3)Sets forth the requirements for a person to file a petition  
            for a certificate of rehabilitation.  Provides that unless and  
            until the period of rehabilitation has passed, the petitioner  








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            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.  

          4)Requires the DOJ 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.   

           
          FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee:

          1)Minor annual special fund costs (less than $100,000) to the  
            Department of Industrial Relations (DIR) to review and  
            investigate an increased number of employment complaints for  
            violations of the right not to disclose an expunged  
            conviction. [Labor Enforcement Compliance Fund]

            The Retaliation Complaint Investigation (RCI) unit within  
            DIR's 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, approximately  
            1,200 cases were filed annually. 

            Several years after enactment, there would be a small number  
            of alleged violations of the new right conferred by this bill.  
             In the near-term, however, there would likely be more  
            violations by employers who are unaware of these new  
            provisions.  The DSLE thus estimates an increase in RCI  
            workload of 1% in the first three years and only about 0.5%  
            annually thereafter.

          2)Any costs to the DOJ would be minor and absorbable.
           
          COMMENTS  :  The author explains the reason for the bill as  
          follows:








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               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 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 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.

          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 DOJ  
          provides criminal history information to employers, as  
          specified.









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          However, this general rule would recognize a number of  
          exceptions where an expunged conviction is related to  
          performance of the job.


           Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334 


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