California Legislature—2015–16 Regular Session

Assembly BillNo. 1843


Introduced by Assembly Member Mark Stone

February 9, 2016


An act to amend Section 432.7 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1843, as introduced, Mark Stone. Applicants for employment: criminal history.

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or posttrial diversion program, except as specified. Existing law also prohibits an employer, as specified, from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, except in specified circumstances. Existing law makes it a crime to intentionally violate these provisions.

This bill would also prohibit an employer from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning specific juvenile court actions or custodial detentions.

Because this bill would expand the definition of a crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 432.7 of the Labor Code is amended to
2read:

3

432.7.  

(a) No employer, whether a public agency or private
4individual or corporation, shall ask an applicant for employment
5to disclose, through any written form or verbally, information
6concerning an arrest or detention that did not result inbegin delete conviction,end delete
7begin insert conviction or juvenile adjudication,end insert or information concerning a
8referral to, and participation in, any pretrial or posttrial diversion
9program, or concerning a convictionbegin insert or juvenile adjudicationend insert that
10has been judicially dismissed or ordered sealed pursuant to law,
11including, but not limited to, Sections 1203.4, 1203.4a, 1203.45,
12and 1210.1 of the Penalbegin delete Code,end deletebegin insert Code and Sections 781, 786, and
13793 of the Welfare and Institutions Code,end insert
nor shall any employer
14seek from any source whatsoever, or utilize, as a factor in
15determining any condition of employment including hiring,
16promotion, termination, or any apprenticeship training program
17or any other training program leading to employment, any record
18of arrest or detention that did not result inbegin delete conviction,end deletebegin insert conviction
19or juvenile adjudication,end insert
or any record regarding a referral to, and
20participation in, any pretrial or posttrial diversion program, or
21concerning a convictionbegin insert or juvenile adjudicationend insert that has been
22judicially dismissed or ordered sealed pursuant to law, including,
23but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1
24of the Penalbegin delete Code.end deletebegin insert Code and Sections 781, 786, and 793 of the
25Welfare and Institutions Code.end insert
As used in this section, a conviction
26shall include a plea, verdict, or finding of guilt regardless of
27whether sentence is imposed by thebegin delete court.end deletebegin insert court, and a juvenile
28adjudication shall include a finding of wardship under Section
29602 of the Welfare and Institutions Code.end insert
Nothing in this section
30shall prevent an employer from asking an employee or applicant
P3    1for employment about an arrest for which the employee or applicant
2is out on bail or on his or her own recognizance pending trial.

3(b) Nothing in this section shall prohibit the disclosure of the
4information authorized for release under Sections 13203 and 13300
5of the Penal Code, to a government agency employing a peace
6officer. However, the employer shall not determine any condition
7of employment other than paid administrative leave based solely
8on an arrest report. The information contained in an arrest report
9may be used as the starting point for an independent, internal
10investigation of a peace officer in accordance with Chapter 9.7
11(commencing with Section 3300) of Division 4 of Title 1 of the
12Government Code.

13(c) In any case where a person violates this section, or Article
146 (commencing with Section 11140) of Chapter 1 of Title 1 of Part
154 of the Penal Code, the applicant may bring an action to recover
16from that person actual damages or two hundred dollars ($200),
17whichever is greater, plus costs, and reasonable attorney’s fees.
18An intentional violation of this section shall entitle the applicant
19to treble actual damages, or five hundred dollars ($500), whichever
20is greater, plus costs, and reasonable attorney’s fees. An intentional
21violation of this section is a misdemeanor punishable by a fine not
22to exceed five hundred dollars ($500).

23(d) The remedies under this section shall be in addition to and
24not in derogation of all other rights and remedies that an applicant
25may have under any other law.

26(e) Persons seeking employment or persons already employed
27as peace officers or persons seeking employment for positions in
28the Department of Justice or other criminal justice agencies as
29defined in Section 13101 of the Penal Code are not covered by
30this section.

31(f) Nothing in this section shall prohibit an employer at a health
32facility, as defined in Section 1250 of the Health and Safety Code,
33from asking an applicant for employment either of the following:

34(1) With regard to an applicant for a position with regular access
35to patients, to disclose an arrest under any section specified in
36Section 290 of the Penal Code.

37(2) With regard to an applicant for a position with access to
38drugs and medication, to disclose an arrest under any section
39specified in Section 11590 of the Health and Safety Code.

P4    1(g) (1) No peace officer or employee of a law enforcement
2agency with access to criminalbegin insert or juvenileend insert offender record
3information maintained by a local law enforcement criminalbegin insert or
4juvenileend insert
justice agency shall knowingly disclose, with intent to
5affect a person’s employment, any information contained therein
6pertaining to an arrest or detention or proceeding that did not result
7in a conviction, including information pertaining to a referral to,
8and participation in, any pretrial or posttrial diversion program, to
9any person not authorized by law to receive that information.

10(2) No other person authorized by law to receive criminalbegin insert or
11juvenileend insert
offender record information maintained by a local law
12enforcement criminalbegin insert or juvenileend insert justice agency shall knowingly
13disclose any information received therefrom pertaining to an arrest
14or detention or proceeding that did not result in a conviction,
15including information pertaining to a referral to, and participation
16in, any pretrial or posttrial diversion program, to any person not
17authorized by law to receive that information.

18(3) No person, except those specifically referred to in Section
191070 of the Evidence Code, who knowing he or she is not
20authorized by law to receive or possess criminalbegin insert or juvenileend insert justice
21records information maintained by a local law enforcement criminal
22begin insert or juvenileend insert justice agency, pertaining to an arrest or other
23proceeding that did not result in a conviction, including information
24pertaining to a referral to, and participation in, any pretrial or
25posttrial diversion program, shall receive or possess that
26information.

27(h) “A person authorized by law to receive that information,”
28for purposes of this section, means any person or public agency
29authorized by a court, statute, or decisional law to receive
30information contained in criminalbegin insert or juvenileend insert offender records
31maintained by a local law enforcement criminalbegin insert or juvenileend insert justice
32agency, and includes, but is not limited to, those persons set forth
33in Section 11105 of the Penal Code, and any person employed by
34a law enforcement criminalbegin insert or juvenileend insert justice agency who is
35required by that employment to receive, analyze, or process
36criminalbegin insert or juvenileend insert offender record information.

37(i) Nothing in this section shall require the Department of Justice
38to remove entries relating to an arrest or detention not resulting in
39conviction from summary criminal history records forwarded to
40an employer pursuant to law.

P5    1(j) As used in this section, “pretrial or posttrial diversion
2program” means any program under Chapter 2.5 (commencing
3with Section 1000) or Chapter 2.7 (commencing with Section
41001) of Title 6 of Part 2 of the Penal Code, Section 13201 or
513352.5 of the Vehicle Code,begin insert Sections 626, 626.5, 654, or 725 of,
6or Article 20.5 (commencing with Section 790) of Chapter 2 of
7Part 1 of Division 2 of, the Welfare and Institutions Code,end insert
or any
8other program expressly authorized and described by statute as a
9diversion program.

10(k) (1) Subdivision (a) shall not apply to any city, city and
11county, county, or district, or any officer or official thereof, in
12screening a prospective concessionaire, or the affiliates and
13associates of a prospective concessionaire for purposes of
14consenting to, or approving of, the prospective concessionaire’s
15application for, or acquisition of, any beneficial interest in a
16concession, lease, or other property interest.

17(2) For purposes of this subdivision the following terms have
18the following meanings:

19(A) “Screening” means a written request for criminalbegin insert or juvenileend insert
20 history information made to a local law enforcement agency.

21(B) “Prospective concessionaire” means any individual, general
22or limited partnership, corporation, trust, association, or other
23entity that is applying for, or seeking to obtain, a public agency’s
24consent to, or approval of, the acquisition by that individual or
25entity of any beneficial ownership interest in any public agency’s
26concession, lease, or other property right whether directly or
27indirectly held. However, “prospective concessionaire” does not
28include any of the following:

29(i) A lender acquiring an interest solely as security for a bona
30fide loan made in the ordinary course of the lender’s business and
31not made for the purpose of acquisition.

32(ii) A lender upon foreclosure or assignment in lieu of
33foreclosure of the lender’s security.

34(C) “Affiliate” means any individual or entity that controls, or
35is controlled by, the prospective concessionaire, or who is under
36common control with the prospective concessionaire.

37(D) “Associate” means any individual or entity that shares a
38common business purpose with the prospective concessionaire
39with respect to the beneficial ownership interest that is subject to
P6    1the consent or approval of the city, county, city and county, or
2district.

3(E) “Control” means the possession, direct or indirect, of the
4power to direct, or cause the direction of, the management or
5policies of the controlled individual or entity.

6(l) (1) Nothing in subdivision (a) shall prohibit a public agency,
7or any officer or official thereof, from denying consent to, or
8approval of, a prospective concessionaire’s application for, or
9acquisition of, any beneficial interest in a concession, lease, or
10other property interest based on the criminal history information
11of the prospective concessionaire or the affiliates or associates of
12the prospective concessionaire that show any criminal conviction
13for offenses involving moral turpitude. Criminal history
14information for purposes of this subdivision includes any criminal
15history information obtained pursuant to Section 11105 or 13300
16of the Penal Code.

17(2) In considering criminal history information, a public agency
18shall consider the crime for which the prospective concessionaire
19or the affiliates or associates of the prospective concessionaire was
20convicted only if that crime relates to the specific business that is
21proposed to be conducted by the prospective concessionaire.

22(3) Any prospective concessionaire whose application for
23consent or approval to acquire a beneficial interest in a concession,
24lease, or other property interest is denied based on criminal history
25information shall be provided a written statement of the reason for
26the denial.

27(4) (A) If the prospective concessionaire submits a written
28request to the public agency within 10 days of the date of the notice
29of denial, the public agency shall review its decision with regard
30to any corrected record or other evidence presented by the
31prospective concessionaire as to the accuracy or incompleteness
32of the criminal history information utilized by the public agency
33in making its original decision.

34(B) The prospective concessionaire shall submit the copy or the
35corrected record of any other evidence to the public agency within
3690 days of a request for review. The public agency shall render its
37decision within 20 days of the submission of evidence by the
38prospective concessionaire.

39(m) Subdivision (a) does not prohibit an employer from asking
40an applicant about a criminal conviction of, seeking from any
P7    1source information regarding a criminal conviction of, utilizing as
2a factor in determining any condition of employment of, or entry
3into a pretrial diversion or similar program by, the applicant if,
4pursuant to Section 1829 of Title 12 of the United States Code or
5any other state or federal law, any of the following apply:

6(1) The employer is required by law to obtain information
7regarding a conviction of an applicant.

8(2) The applicant would be required to possess or use a firearm
9in the course of his or her employment.

10(3) An individual who has been convicted of a crime is
11prohibited by law from holding the position sought by the
12applicant, regardless of whether that conviction has been expunged,
13judicially ordered sealed, statutorily eradicated, or judicially
14dismissed following probation.

15(4) The employer is prohibited by law from hiring an applicant
16who has been convicted of a crime.

17

SEC. 2.  

No reimbursement is required by this act pursuant to
18Section 6 of Article XIII B of the California Constitution because
19the only costs that may be incurred by a local agency or school
20district will be incurred because this act creates a new crime or
21infraction, eliminates a crime or infraction, or changes the penalty
22for a crime or infraction, within the meaning of Section 17556 of
23the Government Code, or changes the definition of a crime within
24the meaning of Section 6 of Article XIII B of the California
25Constitution.



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