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. 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
Because this bill would
begin delete expand the definitionend delete 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 432.7 of the Labor Code is amended to
(a) No employer, whether a public agency or
4private individual or corporation, shall ask an applicant for
5employment to disclose, through any written form or verbally,
6information concerning an arrest or detention that did not result
begin delete conviction or juvenile adjudication,end delete or information
8concerning a referral to, and participation in, any pretrial or
9 posttrial diversion program, or concerning a conviction
begin delete or juvenile that has been judicially dismissed or ordered sealed
11pursuant to law, including, but not limited to, Sections 1203.4,
121203.4a, 1203.45, and 1210.1 of the Penal
begin delete Code and Sections 781, Code, nor shall any
13786, and 793 of the Welfare and Institutionsend delete
14employer seek from any source whatsoever, or utilize, as a factor
15in determining any condition of employment including hiring,
16promotion, termination, or any apprenticeship training program
17or any other training program leading to employment, any record
P3 1of arrest or detention that did not result in
begin delete conviction or juvenile or any record regarding a referral to, and
3participation in, any pretrial or posttrial diversion program, or
4concerning a conviction
begin delete or juvenile adjudicationend delete that has been
5judicially dismissed or ordered sealed pursuant to law, including,
6but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1
7of the Penal
begin delete Code and Sections 781, 786, and 793 of the Welfare Code. As used in this section, a conviction shall
8and Institutionsend delete
9include a plea, verdict, or finding of guilt regardless of whether
10sentence is imposed by the
begin delete court, and a juvenile adjudication shall
Nothing in this section shall prevent
11include a finding of wardship under Section 602 of the Welfare
12and Institutions Code.end delete
13an employer from asking an employee or applicant for employment
14about an arrest for which the employee or applicant is out on bail
15or on his or her own recognizance pending trial.
35(b) Nothing in this section shall prohibit the disclosure of the
36information authorized for release under Sections 13203 and 13300
37of the Penal Code, to a government agency employing a peace
38officer. However, the employer shall not determine any condition
39of employment other than paid administrative leave based solely
40on an arrest report. The information contained in an arrest report
P4 1may be used as the starting point for an independent, internal
2investigation of a peace officer in accordance with Chapter 9.7
3(commencing with Section 3300) of Division 4 of Title 1 of the
5(c) In any case where a person violates this section, or Article
66 (commencing with Section 11140) of Chapter 1 of Title 1 of Part
74 of the Penal Code, the applicant may bring an action to recover
8from that person actual damages or two hundred dollars ($200),
9whichever is greater, plus costs, and reasonable attorney’s fees.
10An intentional violation of this section shall entitle the applicant
11to treble actual damages, or five hundred dollars ($500), whichever
12is greater, plus costs, and reasonable attorney’s fees. An intentional
13violation of this section is a misdemeanor punishable by a fine not
14to exceed five hundred dollars ($500).
15(d) The remedies under this section shall be in addition to and
16not in derogation of all other rights and remedies that an applicant
17may have under any other law.
18(e) Persons seeking employment or persons already employed
19as peace officers or persons seeking employment for positions in
20the Department of Justice or other criminal justice agencies as
21defined in Section 13101 of the Penal Code are not covered by
23(f) Nothing in this section
shall prohibit an employer at a health
24facility, as defined in Section 1250 of the Health and Safety Code,
25from asking an applicant for employment either of the following:
26(1) With regard to an applicant for a position with regular access
27to patients, to disclose an arrest under any section specified in
28Section 290 of the Penal Code.
29(2) With regard to an applicant for a position with access to
30drugs and medication, to disclose an arrest under any section
31specified in Section 11590 of the Health and Safety Code.
32(g) (1) No peace officer or employee of a law enforcement
33agency with access to criminal or juvenile offender record
34information maintained by a local law enforcement criminal or
35juvenile justice agency shall knowingly disclose, with intent to
36affect a person’s employment, any information contained therein
37pertaining to an arrest or detention or proceeding that did not result
38in a conviction, including information pertaining to a referral to,
39and participation in, any pretrial or posttrial diversion program,
40 to any person not authorized by law to receive that
5(2) No other person authorized by law to receive criminal or
6juvenile offender record information maintained by a local law
7enforcement criminal or juvenile justice agency shall knowingly
8 disclose any information received therefrom pertaining to an arrest
9or detention or proceeding that did not result in a conviction,
10including information pertaining to a referral to, and participation
11in, any pretrial or posttrial diversion program,
15 to any person not authorized by law to receive that information.
16(3) No person, except those specifically referred to in Section
171070 of the Evidence Code, who
begin delete knowing he or sheend delete is not
18authorized by law to receive or possess criminal or juvenile justice
19records information maintained by a local law enforcement criminal
20or juvenile justice agency, pertaining to an arrest or other
21proceeding that did not result in a conviction, including information
22pertaining to a referral to, and participation in, any pretrial or
23posttrial diversion program, shall receive or
27possess that information.
28(h) “A person authorized by law to receive that information,”
29for purposes of this section, means any person or public agency
30authorized by a court, statute, or decisional law to receive
31information contained in criminal or juvenile offender records
32maintained by a local law enforcement criminal or juvenile justice
33agency, and includes, but is not limited to, those persons set forth
34in Section 11105 of the Penal Code, and any person employed by
35a law enforcement criminal or juvenile justice agency who is
36required by that employment to receive, analyze, or process
37criminal or juvenile offender record information.
38(i) Nothing in this section shall require the Department of Justice
39to remove entries relating to an arrest or detention not resulting in
P6 1conviction from summary criminal history records forwarded to
2an employer pursuant to law.
3(j) As used in this section, “pretrial or posttrial diversion
4program” means any program under Chapter 2.5 (commencing
5with Section 1000) or Chapter 2.7 (commencing with Section
61001) of Title 6 of Part 2 of the Penal Code, Section 13201 or
713352.5 of the Vehicle Code, Sections 626, 626.5, 654, or 725 of,
8or Article 20.5 (commencing with Section 790) of Chapter 2 of
9Part 1 of Division 2 of, the Welfare and Institutions Code, or any
10other program expressly authorized and described by statute as a
12(k) (1) Subdivision (a) shall not apply to any city, city and
13county, county, or district, or any officer or official thereof, in
14screening a prospective concessionaire, or the affiliates and
15associates of a prospective concessionaire for purposes of
16consenting to, or approving of, the prospective concessionaire’s
17application for, or acquisition of, any beneficial interest in a
18concession, lease, or other property interest.
19(2) For purposes of this subdivision the following terms have
20the following meanings:
21(A) “Screening” means a written request for criminal or juvenile
22history information made to a local law enforcement agency.
23(B) “Prospective concessionaire” means any individual, general
24or limited partnership, corporation, trust, association, or other
25entity that is applying for, or seeking to obtain, a public agency’s
26consent to, or approval of, the acquisition by that individual or
27entity of any beneficial ownership interest in any public agency’s
28concession, lease, or other property right whether directly or
29indirectly held. However, “prospective concessionaire” does not
30include any of the following:
31(i) A lender acquiring an interest solely as security for a bona
32fide loan made in the ordinary course of the lender’s business and
33not made for the purpose of acquisition.
34(ii) A lender upon foreclosure or assignment in lieu of
35foreclosure of the lender’s security.
36(C) “Affiliate” means any individual or entity that controls, or
37is controlled by, the prospective concessionaire, or who is under
38common control with the prospective concessionaire.
39(D) “Associate” means any individual or entity that shares a
40common business purpose with the prospective concessionaire
P7 1with respect to the beneficial ownership interest that is subject to
2the consent or approval of the city, county, city and county, or
4(E) “Control” means the possession, direct or indirect, of the
5power to direct, or cause the direction of, the management or
6policies of the controlled individual or entity.
7(l) (1) Nothing in subdivision (a) shall prohibit a public agency,
8or any officer or official thereof, from denying consent to, or
9approval of, a prospective concessionaire’s application for, or
10acquisition of, any beneficial interest in a concession, lease, or
11other property interest based on the criminal history information
12of the prospective concessionaire or the affiliates or associates of
13the prospective concessionaire that show any criminal conviction
14for offenses involving moral turpitude. Criminal history
15information for purposes of this subdivision includes any criminal
16history information obtained pursuant to Section 11105 or 13300
17of the Penal Code.
18(2) In considering criminal history information, a public agency
19shall consider the crime for which the prospective concessionaire
20or the affiliates or associates of the prospective concessionaire was
21convicted only if that crime relates to the specific business that is
22proposed to be conducted by the prospective concessionaire.
23(3) Any prospective concessionaire whose application for
24consent or approval to acquire a beneficial interest in a concession,
25lease, or other property interest is denied based on criminal history
26information shall be provided a written statement of the reason for
28(4) (A) If the prospective concessionaire submits a written
29request to the public agency within 10 days of the date of the notice
30of denial, the public agency shall review its decision with regard
31to any corrected record or other evidence presented by the
32prospective concessionaire as to the accuracy or incompleteness
33of the criminal history information utilized by the public agency
34in making its original decision.
35(B) The prospective concessionaire shall submit the copy or the
36corrected record of any other evidence to the public agency within
3790 days of a request for review. The public agency shall render its
38decision within 20 days of the submission of evidence by the
begin deleteSubdivision end delete(a) does not
2prohibit an employer from asking an applicant about a criminal
3conviction of, seeking from any source information regarding a
4criminal conviction of, utilizing as a factor in determining any
5condition of employment of, or entry into a pretrial diversion or
6similar program by, the applicant if, pursuant to Section 1829 of
7Title 12 of the United States Code or any other state or federal
8law, any of the following apply:
9(1) The employer is required by law to obtain information
10regarding a conviction of an applicant.
11(2) The applicant would be required to possess or use a firearm
12in the course of his or her employment.
13(3) An individual who has been convicted of a crime is
14prohibited by law from holding the position sought by the
15applicant, regardless of whether that conviction has been expunged,
16judicially ordered sealed, statutorily eradicated, or judicially
17dismissed following probation.
18(4) The employer is prohibited by law from hiring an applicant
19who has been convicted of a crime.
No reimbursement is required by this act pursuant to
21Section 6 of Article XIII B of the California Constitution because
22the only costs that may be incurred by a local agency or school
23district will be incurred because this act creates a new crime or
24infraction, eliminates a crime or infraction, or changes the penalty
25for a crime or infraction, within the meaning of Section 17556 of
26the Government Code, or changes the definition of a crime within
27the meaning of Section 6 of Article XIII B of the California