Amended in Senate May 12, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 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 amended, 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. begin insert Existing law also prohibits a person, knowing that he or she is not authorized to receive or possess that information, from receiving or possessing that information, except as specified. end insert 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 begin delete specific juvenile court actions or custodial detentions. end delete begin insert or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. The bill would revise the prohibition on receiving or possessing information to instead apply to any person that is not authorized to receive or possess that information. The bill, for the purposes of the prohibitions and exceptions described above, would provide that “conviction” excludes an adjudication by a juvenile court or any other court order or action taken with respect to a person who is currently, or has been under, the jurisdiction of juvenile court law, and would make related and conforming changes. end insert

Because this bill would begin delete expand the definition end delete begin insert modify the scope end insert 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:

SECTION 1.  

Section 432.7 of the Labor Code is amended to
read:

432.7.  

(a)  begin insert (1) end insert begin insert   end insert 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 begin delete conviction or juvenile adjudication, end delete begin insert conviction, end insert or information
concerning a referral to, and participation in, any pretrial or
posttrial diversion program, or concerning a conviction begin delete or juvenile
adjudication end delete that has been judicially dismissed or ordered sealed
pursuant to law, including, but not limited to, Sections 1203.4,
1203.4a, 1203.45, and 1210.1 of the Penal begin delete Code and Sections 781,
786, and 793 of the Welfare and Institutions end delete 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 begin delete conviction or juvenile
adjudication, end delete begin insert conviction, end insert or any record regarding a referral to, and
participation in, any pretrial or posttrial diversion program, or
concerning a conviction begin delete or juvenile adjudication end delete that has been
judicially dismissed or ordered sealed pursuant to law, including,
but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1
of the Penal begin delete Code and Sections 781, 786, and 793 of the Welfare
and Institutions end delete 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 begin delete court, and a juvenile adjudication shall
include a finding of wardship under Section 602 of the Welfare
and Institutions Code. end delete begin insert court. end insert 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.

begin insert

(2) 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 or
related to an arrest, detention, processing, diversion, supervision,
adjudication, or court disposition that occurred while the person
was subject to the process and jurisdiction of juvenile court law,
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 concerning or related to an arrest, detention,
processing, diversion, supervision, adjudication, or court
disposition that occurred while a person was subject to the process
and jurisdiction of juvenile court law.

end insert begin insert

(3) For purposes of this section, “conviction” does not include,
and shall not be construed to include, any adjudication by a
juvenile court or any other court order or action taken with respect
to a person who is currently, or has been under, the process and
jurisdiction of juvenile court law.

end insert

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

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

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

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

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

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

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

(g) (1) No peace officer or employee of a law enforcement
agency with access to criminal or juvenile offender record
information maintained by a local law enforcement criminal or
juvenile justice agency shall knowingly disclose, with intent to
affect a person’s employment, any information contained therein
pertaining to an arrest or detention or proceeding that did not result
in a conviction, including information pertaining to a referral to,
and participation in, any pretrial or posttrial diversion program,
begin insert or any information contained therein pertaining to any processing,
supervision, adjudication, or court disposition that occurred while
the person was subject to the process and jurisdiction of juvenile
court law, end insert to any person not authorized by law to receive that
information.

(2) No other person authorized by law to receive criminal or
juvenile offender record information maintained by a local law
enforcement criminal or juvenile justice agency shall knowingly
disclose any information received therefrom pertaining to an arrest
or detention or proceeding that did not result in a conviction,
including information pertaining to a referral to, and participation
in, any pretrial or posttrial diversion program, begin insert or any information
contained therein pertaining to any processing, supervision,
adjudication, or court disposition that occurred while the person
was subject to the process and jurisdiction of juvenile court law, end insert
to any person not authorized by law to receive that information.

(3) No person, except those specifically referred to in Section
1070 of the Evidence Code, who begin delete knowing he or she end delete is not
authorized by law to receive or possess criminal or juvenile justice
records information maintained by a local law enforcement criminal
or juvenile justice agency, pertaining to an arrest or other
proceeding that did not result in a conviction, including information
pertaining to a referral to, and participation in, any pretrial or
posttrial diversion program, begin insert or any information contained therein
pertaining to any detention, processing, supervision, adjudication,
or court disposition that occurred while the person was subject to
the process and jurisdiction of juvenile court law, end insert shall receive or
possess that information.

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

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

(j) As used in this section, “pretrial or posttrial diversion
program” means any program under Chapter 2.5 (commencing
with Section 1000) or Chapter 2.7 (commencing with Section
1001) of Title 6 of Part 2 of the Penal Code, Section 13201 or
13352.5 of the Vehicle Code, Sections 626, 626.5, 654, or 725 of,
or Article 20.5 (commencing with Section 790) of Chapter 2 of
Part 1 of Division 2 of, the Welfare and Institutions Code, or any
other program expressly authorized and described by statute as a
diversion program.

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

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

(A) “Screening” means a written request for criminal or juvenile
history information made to a local law enforcement agency.

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

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

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

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

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

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

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

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

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

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

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

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

(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.

(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.

SEC. 2.  

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