BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1289|
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THIRD READING
Bill No: AB 1289
Author: Cooper (D)
Amended: 8/19/16 in Senate
Vote: 21
SENATE ENERGY, U. & C. COMMITTEE: 11-0, 6/13/16
AYES: Hueso, Morrell, Cannella, Gaines, Hertzberg, Hill, Lara,
Leyva, McGuire, Pavley, Wolk
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/28/16
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 80-0, 6/1/15 - See last page for vote
SUBJECT: Transportation network companies: participating
drivers: penalties
SOURCE: Author
DIGEST: This bill requires a transportation network company
(TNC) to conduct, or have a third party conduct, a local and
national criminal background check for each participating
driver, that includes multistate and multijurisdiction criminal
records locator. This bill prohibits a TNC from retaining a
driver who is required by any law to register as a sex offender
or has been convicted of specified list of felonies. This bill
sets minimum and maximum fines for violating these requirements
and exempts consumer report agencies from furnishing TNCs with
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currently prohibited non-conviction information of applicant
drivers.
Senate Floor Amendments of 8/19/16 clarify, narrow and expand
the penal code violations that can be considered in assessing
whether a prospective driver can be hired, contracted with, or
retained by a TNC.
ANALYSIS:
Existing law:
1) Provides that the California Public Utilities Commission
(CPUC) may fix rates and establish rules for the
transportation of passengers and property by transportation
companies, prohibit discrimination, and award reparation for
the exaction of unreasonable, excessive, or discriminatory
charges. (Article XII, §4 of the California Constitution)
2) Establishes the CPUC's authority to regulate, require
license or permit to operate, require insurance and workers
compensation, take appropriate enforcement action and other
provisions related to passenger stage corporations and
transportation charter-party carriers. (Public Utilities
Code §§1031 et. seq. and 5351).
3) Defines a TNC as an organization, including, but not limited
to, a corporation, limited-liability company, partnership,
sole proprietor, or any other entity, operating in California
that provides prearranged transportation services for
compensation using an online-enabled application or platform
to connect passengers with drivers using a personal vehicle.
(Public Utilities Code §5431)
4) Requires the Department of Justice (DOJ) to maintain state
summary criminal history information. (Penal Code §11105(a))
5) Requires the DOJ to furnish state summary criminal history
information to specified entities, if needed in the course of
their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local
government, a public utility, or any other entity in
fulfilling employment, certification, or licensing duties,
specified restrictions listed in the Labor Code are followed.
(Penal Code §11105 (b))
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6) Allows the DOJ to furnish state summary criminal history
information to specified entities and, when specifically
authorized, federal-level criminal history information, upon
a showing of a compelling need, provided that when
information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or
any other entity in fulfilling employment, certification, or
licensing duties, specified restrictions listed in the Labor
Code are followed. (Penal Code §11105 (c))
7) Authorizes any local criminal justice agency as defined to
compile local summary criminal history information and
requires the local criminal justice agency to furnish this
information and requires the local criminal justice agency to
furnish this information to any of the specified entities.
(Penal Code §13300)
8) Defines violent felony to mean: murder or voluntary
manslaughter, rape, a felony in which defendant inflicts
great bodily injury, arson, kidnapping, attempted murder,
carjacking, burglary of first degree, and several other
offenses. (Penal Code §667.5 )
9) Provides that an investigative consumer reporting agency
shall only furnish an investigative report under the
specified purpose including that it is intended to be used
for information for employment purposes. (Civil Code
§1786.12)
10)Prohibits a consumer reporting agency from furnishing
specified items including records of arrest, indictment,
information, misdemeanor complaint, or conviction of a crime
that is more than seven years old. (Civil Code §1786.18
(7)(a))
This bill:
1) Requires a TNC to conduct, or have a third party conduct, a
local and national criminal background check for each
participating driver that includes both (1) multistate and
multijurisdiction criminal records locator or other similar
commercial nationwide database with validation and (2) a
search of the United States Department of Justice National
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Sex Offender Public Website.
2) Prohibits a TNC from contracting, employing, or retaining a
driver who is currently registered on the United States
Department of Justice National Sex Offender Public Website,
has been convicted of a any of a list of specified offenses,
including violent felony and acts of terror, or, within the
previous seven years, has been convicted of any misdemeanor
assault or battery, a domestic violence offense, driving
under the influence of alcohol or drugs, or any of a
specified list of felonies.
3) Prohibits a TNC from contracting, employing, or retaining a
driver who has been convicted of an offense committed in
another jurisdiction that includes all of the elements of any
of the offenses specified in the bill.
4) Provides that a TNC is not prevented from imposing
additional standards beyond those mentioned in this bill.
5) Provides that a TNC that violates or fails to comply with
these requirements is subject to a penalty of not less than
one thousand dollars ($1,000) nor more than five thousand
dollars ($5,000) for each offense.
6) Provides that an investigative consumer reporting agency may
furnish an investigative consumer report to a TNC about a
person seeking to become a participating driver, regardless
of whether the participating driver is to be an employee or
an independent contractor of the TNC.
7) Exempts an investigative consumer report furnished to a TNC
from the requirements of current statute that prohibit the
release non-conviction information.
Background
Criminal background check. A criminal background check is a
search of confidential law enforcement databases which can be
cross-referenced with a person's name, social security number or
other personal identifier (also known as biometric
identification). The cross-referencing and the biometric
identification (such as a fingerprint) ensures that even if a
person uses multiple names or another person in the database
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exists with the same name, the result of the search will be
accurate. [Daus, Matthew W. and Pasqualino Russo. One Standard
for All: Criminal Background Checks for Taxicab, For-hire, and
Transportation Network Company Drivers. May 2015.] These
background checks can be conducted by private vendors or
directly by a government agency. The various types of criminal
background checks range from a simplified name check to social
security number check to a fingerprint check, or combination
thereof, which is run through the Federal Bureau of
Investigations (FBI) database or through a state or local level
law enforcement database.
TNCs and criminal background checks. The recent growth and
popularity of technology-enabled transportation ride-hailing
services from companies like Lyft and Uber have raised questions
about whether these services are adequately regulated to ensure
public safety. A year ago, the LA Times found that at least
four men who were ticketed by Los Angeles International Airport
police while driving for a TNC have criminal convictions that
would have barred them from operating a taxi - including
convictions of child exploitation, manslaughter and identify
theft. In August, district attorneys of Los Angeles and San
Francisco filed amended complaints against the same TNC citing
25 instances they found of California drivers for this company
with criminal records. Earlier this year, the district
attorneys and the company reached a settlement agreement of $25
million of a lawsuit focused on consumer protection and public
safety whereby the district attorneys accused the company of
overstating its customer-safety policy in marketing materials.
The company was originally claiming it has the "safest ride on
the road" and described its background checks as "the gold
standard." These are claims the company can no longer make.
More recently, the City of LA sent the CPUC a letter requesting
a pilot project on criminal background checks that would require
finger print background checks. However, the CPUC declined.
Varying requirements. The various types of transportation
for-hire services (e.g., TNCs, limousines, taxi cabs) have
varying regulations related to criminal background checks.
Taxicab services are required to undergo extensive criminal
background check requirements, including a LiveScan -
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fingerprint check - that is run through the FBI and other
databases. Unlike taxicab services, TNCs are not required to
perform fingerprint criminal background checks that use the
United States Department of Justice FBI database. While the
CPUC does require TNCs to perform criminal background checks on
their drivers, fingerprinting is not required. Instead, TNCs
contract with a third-party to run a namecheck background check
which does not include the FBI database. However, the CPUC has
stated its intention to address the issue of criminal background
checks in a third phase of its current proceeding related to TNC
regulations and is currently soliciting public comments on
whether fingerprinting should be required. The agency has also
recently required fingerprint background checks via the
TrustLine finger print check system for TNCs that serve
unaccompanied minors and market themselves as chauffeuring
services to take kids to school or afterschool activities. The
TrustLine fingerprint check system searches federal and state
law enforcement databases as is commonly used for professions
that require interaction with children and minors, such as
teachers, school volunteers, school bus drivers and others.
Need for fingerprinting. While no one background check system is
completely full-proof, a combination of name and social security
checks with a biometric identifier, such as a fingerprint, would
ensure the greatest level of accuracy, and therefore, the best
protection of public safety and fairness to potential drivers.
On June 22, the CPUC assigned commissioner issued a ruling
seeking comments from parties and all interested stakeholders on
whether the CPUC should require fingerprint-based background
checks of TNC drivers. Moreover, the Senate Committee on Public
Safety in its analysis noted: "Historically, this Committee
[Public Safety] has not passed bills providing for background
checks that are not fingerprint based. Name based checks are
not as reliable as similar names exist and there is not check on
the information." However, fingerprinting requires applicants
to visit a police station or other channeling office in order to
provide fingerprints that can be used to search in federal,
state, and local law enforcement databases. The TNCs argue that
such delay in hiring drivers could jeopardize their business
model which relies on signing-up drivers fairly instantaneously
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via a phone application. The author's intent to enhance public
safety can be strengthened by including language that would
require the CPUC to assess the use of biometric, including
fingerprint background checks, for TNCs and determine what type
of background check should be required. As currently drafted,
this bill does not include fingerprinting or other biometric
requirements as part of a background check.
Prohibited offenses. This bill largely expands, but also
narrows, the CPUC's current list of convictions that can be used
to prohibit TNCs from retaining an applicant-driver. Currently,
the CPUC requires TNCs to conduct a criminal background check
for each driver that uses the national criminal background
check, including the national sex offender database utilizing
the applicant's social security number and not just the
applicant's name. The CPUC also requires that any felony
criminal conviction within the prior seven years would make the
applicant-driver ineligible, specifically: driving under the
influence of drugs or alcohol, fraud, use of a motor vehicle to
commit a felony, a violent crime or act of terror, a sexual
offense, a crime involving property damage, and/or theft. This
bill expands the list by prohibiting TNCs from contracting,
employing or retaining drivers who have been convicted of a
violent felony regardless of the how long ago the offense
occurred, adds misdemeanor assault and battery, domestic
violence offense to those convictions occurring within the prior
seven years, several bribery convictions, extortion, false
impersonation, larceny and other offenses . However, this bill
also narrows the list of convictions which TNCs must consider by
not including specified criminal convictions in this bill,
including: fraud, use of a motor vehicle to commit a felony, a
sexual offense, and a crime involving property damage.
Arrest records. According to the Senate Committee on Public
Safety:
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When the DOJ releases a criminal history based on a fingerprint
check it may not release arrest information unless and until
they can make a determination as to the final disposition of the
arrest. The DOJ process ensures that a record is not released
if the charges were dropped, the wrong person was arrested, the
person was acquitted or any other situation where an arrest
should not be used against a person. However, non-fingerprint
checks do not utilize the DOJ database, which as a result, do
not stop a TNC from receiving an arrest record where an arrest
record should not be used against a person. Additionally, this
bill creates an exception to the Civil Code provision
prohibiting an investigative consumer reporting agency from
furnishing specified items including records of arrest,
indictment, information, misdemeanor complaint, or conviction of
a crime that is more than seven years old.
Prior/Related Legislation
AB 2777 (Nazarian, 2016) would have allowed, but not require, a
TNC to ask the DOJ to provide summary criminal history
information for its employees and contractors. The bill failed
passage on the Assembly floor.
SB 1035 (Hueso, 2016) would have required, among other things,
the CPUC to study several driver background check protocols,
including the United States DOJ background check, and to adopt
any for TNCs that would enhance public safety by capturing
records of any criminal offense. The bill failed in Senate
Committee on Transportation and Housing.
AB 1422 (Cooper, Chapter 791, Statutes of 2015) required TNCs to
participate in the Department of Motor Vehicles Pull Notice
System to regularly check the driving records of participating
drivers.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
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SUPPORT: (Verified8/8/16)
California Delivery Association
Peace Officers Research Association of California
San Diego International Airport
OPPOSITION: (Verified8/8/16)
American Civil Liberties Union
East Bay Community Law Center
Legal Services for Prisoners with Children
National Employment Law Project
ARGUMENTS IN SUPPORT: According to the author, this bill seeks
to improve the safety of consumers utilizing TNC services. AB
1289 "will assist TNCs uncover the complete criminal history of
prospective drivers and will help ensure the safety of
passengers utilizing TNC services." The San Diego Airport
Authority in supporting this bill, states "the Airport Authority
is continually seeking ways to enhance the safety of passengers
and employees at San Diego International Airport. Accordingly,
this bill could reduce the potential risk posed by drivers with
criminal records to individuals utilizing TNCs to access the
airport."
ARGUMENTS IN OPPOSITION: Many of the opponents of this bill
argue that background checks are known to contain errors which
could wrongly deprive qualified applicants of economic
opportunities. The opponents also argue that even if the
information is true, past criminal convictions do not predict
future behavior. Additionally, many of those opposed raised
concerns about the lack of clarity regarding the list of
offenses stated in this bill that would be used to filter
potential drivers.
ASSEMBLY FLOOR: 80-0, 6/1/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
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Page 10
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,
Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
Prepared by:Nidia Bautista / E., U., & C. / (916) 651-4107
8/22/16 22:10:23
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