Amended in Senate May 27, 2016

Amended in Senate May 12, 2016

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 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 delete 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 delete 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 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.begin delete 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.end delete 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 isbegin delete currently, or has been under,end deletebegin insert underend insert the jurisdiction ofbegin insert theend insert juvenile court law, and would make related and conforming changes.

Because this bill would modify the scope 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) (1) 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 in conviction,
7or information concerning a referral to, and participation in, any
8pretrial or posttrial diversion program, or concerning a conviction
9that has been judicially dismissed or ordered sealed pursuant to
10law, including, but not limited to, Sections 1203.4, 1203.4a,
111203.45, and 1210.1 of the Penal Code, nor shall any employer
12seek from any source whatsoever, or utilize, as a factor in
13determining any condition of employment including hiring,
14promotion, termination, or any apprenticeship training program
15or any other training program leading to employment, any record
16of arrest or detention that did not result in conviction, or any record
17regarding a referral to, and participation in, any pretrial or posttrial
P3    1diversion program, or concerning a conviction that has been
2judicially dismissed or ordered sealed pursuant to law, including,
3but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1
4of the Penal Code. As used in this section, a conviction shall
5include a plea, verdict, or finding of guilt regardless of whether
6sentence is imposed by the court. Nothing in this section shall
7prevent an employer from asking an employee or applicant for
8employment about an arrest for which the employee or applicant
9is out on bail or on his or her own recognizance pending trial.

10(2) No employer, whether a public agency or private individual
11or corporation, shall ask an applicant for employment to disclose,
12through any written form or verbally, information concerning or
13related to an arrest, detention, processing, diversion, supervision,
14adjudication, or court disposition that occurred while the person
15was subject to the process and jurisdiction of juvenile court law,
16nor shall any employer seek from any source whatsoever, or utilize,
17as a factor in determining any condition of employment including
18hiring, promotion, termination, or any apprenticeship training
19program or any other training program leading to employment,
20any record concerning or related to an arrest, detention, processing,
21diversion, supervision, adjudication, or court disposition that
22occurred while a person was subject to the process and jurisdiction
23of juvenile court law.

24(3) For purposes of this section, “conviction” does not include,
25and shall not be construed to include, any adjudication by a juvenile
26court or any other court order or action taken with respect to a
27person who isbegin delete currently, or has been under,end deletebegin insert underend insert the process and
28jurisdiction ofbegin insert theend insert juvenile court law.

29(b) Nothing in this section shall prohibit the disclosure of the
30information authorized for release under Sections 13203 and 13300
31of the Penal Code, to a government agency employing a peace
32officer. However, the employer shall not determine any condition
33of employment other than paid administrative leave based solely
34on an arrest report. The information contained in an arrest report
35may be used as the starting point for an independent, internal
36investigation of a peace officer in accordance with Chapter 9.7
37(commencing with Section 3300) of Division 4 of Title 1 of the
38Government Code.

39(c) In any case where a person violates this section, or Article
406 (commencing with Section 11140) of Chapter 1 of Title 1 of Part
P4    14 of the Penal Code, the applicant may bring an action to recover
2from that person actual damages or two hundred dollars ($200),
3whichever is greater, plus costs, and reasonable attorney’s fees.
4An intentional violation of this section shall entitle the applicant
5to treble actual damages, or five hundred dollars ($500), whichever
6is greater, plus costs, and reasonable attorney’s fees. An intentional
7violation of this section is a misdemeanor punishable by a fine not
8to exceed five hundred dollars ($500).

9(d) The remedies under this section shall be in addition to and
10not in derogation of all other rights and remedies that an applicant
11may have under any other law.

12(e) Persons seeking employment or persons already employed
13as peace officers or persons seeking employment for positions in
14the Department of Justice or other criminal justice agencies as
15defined in Section 13101 of the Penal Code are not covered by
16this section.

17(f) Nothing in this section shall prohibit an employer at a health
18facility, as defined in Section 1250 of the Health and Safety Code,
19from asking an applicant for employment either of the following:

20(1) With regard to an applicant for a position with regular access
21to patients, to disclose an arrest under any section specified in
22Section 290 of the Penal Code.

23(2) With regard to an applicant for a position with access to
24drugs and medication, to disclose an arrest under any section
25specified in Section 11590 of the Health and Safety Code.

26(g) (1) No peace officer or employee of a law enforcement
27agency with access to criminal or juvenile offender record
28information maintained by a local law enforcement criminal or
29juvenile justice agency shall knowingly disclose, with intent to
30affect a person’s employment, any information contained therein
31pertaining to an arrest or detention or proceeding that did not result
32in a conviction, including information pertaining to a referral to,
33and participation in, any pretrial or posttrial diversion program,begin delete or
34any information contained therein pertaining to any processing,
35supervision, adjudication, or court disposition that occurred while
36the person was subject to the process and jurisdiction of juvenile
37court law,end delete
to any person not authorized by law to receive that
38information.

39(2) No other person authorized by law to receive criminal or
40juvenile offender record information maintained by a local law
P5    1enforcement criminal or juvenile justice agency shall knowingly
2 disclose any information received therefrom pertaining to an arrest
3or detention or proceeding that did not result in a conviction,
4including information pertaining to a referral to, and participation
5in, any pretrial or posttrial diversion program,begin delete or any information
6contained therein pertaining to any processing, supervision,
7adjudication, or court disposition that occurred while the person
8was subject to the process and jurisdiction of juvenile court law,end delete

9 to any person not authorized by law to receive that information.

10(3) No person, except those specifically referred to in Section
111070 of the Evidence Code, who is not authorized by law to receive
12or possess criminal or juvenile justice records information
13maintained by a local law enforcement criminal or juvenile justice
14agency, pertaining to an arrest or other proceeding that did not
15result in a conviction, including information pertaining to a referral
16to, and participation in, any pretrial or posttrial diversion program,
17begin delete or any information contained therein pertaining to any detention,
18processing, supervision, adjudication, or court disposition that
19occurred while the person was subject to the process and
20jurisdiction of juvenile court law,end delete
shallbegin insert knowinglyend insert receive or
21possess that information.

22(h) “A person authorized by law to receive that information,”
23for purposes of this section, means any person or public agency
24authorized by a court, statute, or decisional law to receive
25information contained in criminal or juvenile offender records
26maintained by a local law enforcement criminal or juvenile justice
27agency, and includes, but is not limited to, those persons set forth
28in Section 11105 of the Penal Code, and any person employed by
29a law enforcement criminal or juvenile justice agency who is
30required by that employment to receive, analyze, or process
31criminal or juvenile offender record information.

32(i) Nothing in this section shall require the Department of Justice
33to remove entries relating to an arrest or detention not resulting in
34conviction from summary criminal history records forwarded to
35an employer pursuant to law.

36(j) As used in this section, “pretrial or posttrial diversion
37program” means any program under Chapter 2.5 (commencing
38with Section 1000) or Chapter 2.7 (commencing with Section
391001) of Title 6 of Part 2 of the Penal Code, Section 13201 or
4013352.5 of the Vehicle Code, Sections 626, 626.5, 654, or 725 of,
P6    1or Article 20.5 (commencing with Section 790) of Chapter 2 of
2Part 1 of Division 2 of, the Welfare and Institutions Code, or any
3other program expressly authorized and described by statute as a
4diversion program.

5(k) (1) Subdivision (a) shall not apply to any city, city and
6county, county, or district, or any officer or official thereof, in
7screening a prospective concessionaire, or the affiliates and
8associates of a prospective concessionaire for purposes of
9consenting to, or approving of, the prospective concessionaire’s
10application for, or acquisition of, any beneficial interest in a
11concession, lease, or other property interest.

12(2) For purposes of this subdivision the following terms have
13the following meanings:

14(A) “Screening” means a written request for criminal or juvenile
15history information made to a local law enforcement agency.

16(B) “Prospective concessionaire” means any individual, general
17or limited partnership, corporation, trust, association, or other
18entity that is applying for, or seeking to obtain, a public agency’s
19consent to, or approval of, the acquisition by that individual or
20entity of any beneficial ownership interest in any public agency’s
21concession, lease, or other property right whether directly or
22indirectly held. However, “prospective concessionaire” does not
23include any of the following:

24(i) A lender acquiring an interest solely as security for a bona
25fide loan made in the ordinary course of the lender’s business and
26not made for the purpose of acquisition.

27(ii) A lender upon foreclosure or assignment in lieu of
28foreclosure of the lender’s security.

29(C) “Affiliate” means any individual or entity that controls, or
30is controlled by, the prospective concessionaire, or who is under
31common control with the prospective concessionaire.

32(D) “Associate” means any individual or entity that shares a
33common business purpose with the prospective concessionaire
34with respect to the beneficial ownership interest that is subject to
35the consent or approval of the city, county, city and county, or
36district.

37(E) “Control” means the possession, direct or indirect, of the
38power to direct, or cause the direction of, the management or
39policies of the controlled individual or entity.

P7    1(l) (1) Nothing in subdivision (a) shall prohibit a public agency,
2or any officer or official thereof, from denying consent to, or
3approval of, a prospective concessionaire’s application for, or
4acquisition of, any beneficial interest in a concession, lease, or
5other property interest based on the criminal history information
6of the prospective concessionaire or the affiliates or associates of
7the prospective concessionaire that show any criminal conviction
8for offenses involving moral turpitude. Criminal history
9information for purposes of this subdivision includes any criminal
10history information obtained pursuant to Section 11105 or 13300
11of the Penal Code.

12(2) In considering criminal history information, a public agency
13shall consider the crime for which the prospective concessionaire
14or the affiliates or associates of the prospective concessionaire was
15convicted only if that crime relates to the specific business that is
16proposed to be conducted by the prospective concessionaire.

17(3) Any prospective concessionaire whose application for
18consent or approval to acquire a beneficial interest in a concession,
19lease, or other property interest is denied based on criminal history
20information shall be provided a written statement of the reason for
21the denial.

22(4) (A) If the prospective concessionaire submits a written
23request to the public agency within 10 days of the date of the notice
24of denial, the public agency shall review its decision with regard
25to any corrected record or other evidence presented by the
26prospective concessionaire as to the accuracy or incompleteness
27of the criminal history information utilized by the public agency
28in making its original decision.

29(B) The prospective concessionaire shall submit the copy or the
30corrected record of any other evidence to the public agency within
3190 days of a request for review. The public agency shall render its
32decision within 20 days of the submission of evidence by the
33prospective concessionaire.

34(m) Paragraph (1) of subdivision (a) does not prohibit an
35employer from asking an applicant about a criminal conviction of,
36seeking from any source information regarding a criminal
37conviction of, utilizing as a factor in determining any condition of
38employment of, or entry into a pretrial diversion or similar program
39by, the applicant if, pursuant to Section 1829 of Title 12 of the
P8    1United States Code or any other state or federal law, any of the
2following apply:

3(1) The employer is required by law to obtain information
4regarding a conviction of an applicant.

5(2) The applicant would be required to possess or use a firearm
6in the course of his or her employment.

7(3) An individual who has been convicted of a crime is
8prohibited by law from holding the position sought by the
9applicant, regardless of whether that conviction has been expunged,
10judicially ordered sealed, statutorily eradicated, or judicially
11dismissed following probation.

12(4) The employer is prohibited by law from hiring an applicant
13who has been convicted of a crime.

14

SEC. 2.  

No reimbursement is required by this act pursuant to
15Section 6 of Article XIII B of the California Constitution because
16the only costs that may be incurred by a local agency or school
17district will be incurred because this act creates a new crime or
18infraction, eliminates a crime or infraction, or changes the penalty
19for a crime or infraction, within the meaning of Section 17556 of
20the Government Code, or changes the definition of a crime within
21the meaning of Section 6 of Article XIII B of the California
22Constitution.



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