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 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, 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 under the jurisdiction of the 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:
Section 432.7 of the Labor Code is amended to
(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
P3 1law, including, but not limited to, Sections 1203.4, 1203.4a,
21203.45, and 1210.1 of the Penal Code, nor shall any employer
3seek from any source whatsoever, or utilize, as a factor in
4determining any condition of employment including hiring,
5promotion, termination, or any apprenticeship training program
6or any other training program leading to employment, any record
7of arrest or detention that did not result in conviction, or any record
8regarding a referral to, and participation in, any pretrial or posttrial
9diversion program, or concerning a conviction that has been
10judicially dismissed or ordered sealed pursuant to law, including,
11but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1
12of the Penal Code. As used in this section, a conviction shall
13include a plea, verdict, or finding of guilt regardless of whether
14sentence is imposed by the court. Nothing in this section shall
15prevent an employer from asking an employee or applicant for
16employment about an arrest for which the employee or applicant
17is out on bail or on his or her own recognizance pending trial.
18(2) No employer, whether a public agency or private individual
19or corporation, shall ask an applicant for employment to disclose,
20through any written form or verbally, information concerning or
21related to an arrest, detention, processing, diversion, supervision,
22adjudication, or court disposition that occurred while the person
23was subject to the process and jurisdiction of juvenile court law,
24nor shall any employer seek from any source whatsoever, or utilize,
25as a factor in determining any condition of employment including
26hiring, promotion, termination, or any apprenticeship training
27program or any other training program leading to employment,
28any record concerning or related to an arrest, detention, processing,
29diversion, supervision, adjudication, or court disposition that
30occurred while a person was subject to the process and jurisdiction
31of juvenile court law.
32(3) For purposes of this section, “conviction” does not include,
33and shall not be construed to include, any adjudication by a juvenile
34court or any other court order or action taken with respect to a
35person who is under the process and jurisdiction of the juvenile
37(b) Nothing in this section shall prohibit the disclosure of the
38information authorized for release under Sections 13203 and 13300
39of the Penal Code, to a government agency employing a peace
40officer. However, the employer shall not determine any condition
P4 1of employment other than paid administrative leave based solely
2on an arrest report. The information contained in an arrest report
3may be used as the starting point for an independent, internal
4investigation of a peace officer in accordance with Chapter 9.7
5(commencing with Section 3300) of Division 4 of Title 1 of the
7(c) In any case where a person violates this section, or Article
86 (commencing with Section 11140) of Chapter 1 of Title 1 of Part
94 of the Penal Code, the applicant may bring an action to recover
10from that person actual damages or two hundred dollars ($200),
11 whichever is greater, plus costs, and reasonable attorney’s fees.
12An intentional violation of this section shall entitle the applicant
13to treble actual damages, or five hundred dollars ($500), whichever
14is greater, plus costs, and reasonable attorney’s fees. An intentional
15violation of this section is a misdemeanor punishable by a fine not
16to exceed five hundred dollars ($500).
17(d) The remedies under this section shall be in addition to and
18not in derogation of all other rights and remedies that an applicant
19may have under any other law.
20(e) Persons seeking employment or persons already employed
21as peace officers or persons seeking employment for positions in
22the Department of Justice or other criminal justice agencies as
23defined in Section 13101 of the Penal Code are not covered by
begin deleteNothing end delete
26in this section shall prohibit an employer at a health facility, as
27defined in Section 1250 of the Health and Safety Code, from asking
28an applicant for employment either of the following:
20 29(1)end delete
30 With regard to an applicant for a position with regular access
31to patients, to disclose an arrest under any section specified in
32Section 290 of the Penal Code.
23 33(2)end delete
34 With regard to an applicant for a position with access to
35drugs and medication, to disclose an arrest under any section
36specified in Section 11590 of the Health and Safety Code.
16(g) (1) No peace officer or employee of a law enforcement
17agency with access to criminal or juvenile offender record
18information maintained by a local law enforcement criminal or
19juvenile justice agency shall knowingly disclose, with intent to
20affect a person’s employment, any information contained therein
21pertaining to an arrest or detention or proceeding that did not result
22in a conviction, including information pertaining to a referral to,
23and participation in, any pretrial or posttrial diversion program, to
24any person not authorized by law to receive that information.
25(2) No other person authorized by law to receive criminal or
26juvenile offender record information maintained by a local law
27enforcement criminal or juvenile justice agency shall knowingly
28disclose any information received therefrom pertaining to an arrest
29or detention or proceeding that did not result in a conviction,
30including information pertaining to a referral to, and participation
31in, any pretrial or posttrial diversion program, to any person not
32authorized by law to receive that information.
33(3) No person, except those specifically referred to in Section
341070 of the Evidence Code, who is not authorized by law to receive
35or possess criminal or juvenile justice records information
36maintained by a local law enforcement criminal or juvenile justice
37agency, pertaining to an arrest or other proceeding that did not
38result in a conviction, including information pertaining to a referral
39to, and participation in, any pretrial or posttrial diversion program,
40shall knowingly receive or possess that information.
P6 1(h) “A person authorized by law to receive that information,”
2for purposes of this section, means any person or public agency
3authorized by a court, statute, or decisional law to receive
4information contained in criminal or juvenile offender records
5maintained by a local law enforcement criminal or juvenile justice
6agency, and includes, but is not limited to, those persons set forth
7in Section 11105 of the Penal Code, and any person employed by
8a law enforcement criminal or juvenile justice agency who is
9required by that employment to receive, analyze, or process
10criminal or juvenile offender record information.
11(i) Nothing in this section shall require the Department of Justice
12to remove entries relating to an arrest or detention not resulting in
13conviction from summary criminal history records forwarded to
14an employer pursuant to law.
15(j) As used in this section, “pretrial or posttrial diversion
16program” means any program under Chapter 2.5 (commencing
17with Section 1000) or Chapter 2.7 (commencing with Section
181001) of Title 6 of Part 2 of the Penal Code, Section 13201 or
1913352.5 of the Vehicle Code, Sections 626, 626.5, 654, or 725 of,
20or Article 20.5 (commencing with Section 790) of Chapter 2 of
21Part 1 of Division 2 of, the Welfare and Institutions Code, or any
22other program expressly authorized and described by statute as a
24(k) (1) Subdivision (a) shall not apply to any city, city and
25county, county, or district, or any officer or official thereof, in
26screening a prospective concessionaire, or the affiliates and
27associates of a prospective concessionaire for purposes of
28consenting to, or approving of, the prospective concessionaire’s
29application for, or acquisition of, any beneficial interest in a
30concession, lease, or other property interest.
31(2) For purposes of this subdivision the following terms have
32the following meanings:
33(A) “Screening” means a written request for criminal or juvenile
34history information made to a local law enforcement agency.
35(B) “Prospective concessionaire” means any individual, general
36or limited partnership, corporation, trust, association, or other
37entity that is applying for, or seeking to obtain, a public agency’s
38consent to, or approval of, the acquisition by that individual or
39entity of any beneficial ownership interest in any public agency’s
40concession, lease, or other property right whether directly or
P7 1indirectly held. However, “prospective concessionaire” does not
2include any of the following:
3(i) A lender acquiring an interest solely as security for a bona
4fide loan made in the ordinary course of the lender’s business and
5not made for the purpose of acquisition.
6(ii) A lender upon foreclosure or assignment in lieu of
7foreclosure of the lender’s security.
8(C) “Affiliate” means any individual or entity that controls, or
9is controlled by, the prospective concessionaire, or who is under
10common control with the prospective concessionaire.
11(D) “Associate” means any individual or entity that shares a
12common business purpose with the prospective concessionaire
13with respect to the beneficial ownership interest that is subject to
14the consent or approval of the city, county, city and county, or
16(E) “Control” means the possession, direct or indirect, of the
17power to direct, or cause the direction of, the management or
18policies of the controlled individual or entity.
19(l) (1) Nothing in subdivision (a) shall prohibit a public agency,
20or any officer or official thereof, from denying consent to, or
21approval of, a prospective concessionaire’s application for, or
22acquisition of, any beneficial interest in a concession, lease, or
23other property interest based on the criminal history information
24of the prospective concessionaire or the affiliates or associates of
25the prospective concessionaire that show any criminal conviction
26for offenses involving moral turpitude. Criminal history
27information for purposes of this subdivision includes any criminal
28history information obtained pursuant to Section 11105 or 13300
29of the Penal Code.
30(2) In considering criminal history information, a public agency
31shall consider the crime for which the prospective concessionaire
32or the affiliates or associates of the prospective concessionaire was
33convicted only if that crime relates to the specific business that is
34proposed to be conducted by the prospective concessionaire.
35(3) Any prospective concessionaire whose
36consent or approval to acquire a beneficial interest in a concession,
37lease, or other property interest is denied based on criminal history
38information shall be provided a written statement of the reason for
P8 1(4) (A) If the prospective concessionaire submits a written
2request to the public agency within 10 days of the date of the notice
3of denial, the public agency shall review its decision with regard
4to any corrected record or other evidence presented by the
5prospective concessionaire as to the accuracy or incompleteness
6of the criminal history information utilized by the public agency
7in making its original decision.
8(B) The prospective concessionaire shall submit the copy or the
9corrected record of any other evidence to the public agency within
1090 days of a request for review. The public agency shall render its
11decision within 20 days of the submission of evidence by the
13(m) Paragraph (1) of subdivision (a) does not prohibit an
14employer from asking an applicant about a criminal conviction of,
15seeking from any source information regarding a criminal
16conviction of, utilizing as a factor in determining any condition of
17employment of, or entry into a pretrial diversion or similar program
18by, the applicant if, pursuant to Section 1829 of Title 12 of the
19United States Code or any other state or federal law, any of the
21(1) The employer is required by law to obtain information
22regarding a conviction of an applicant.
23(2) The applicant would be required to possess or use a firearm
24in the course of his or her employment.
25(3) An individual who
has been convicted of a crime is
26prohibited by law from holding the position sought by the
27applicant, regardless of whether that conviction has been expunged,
28judicially ordered sealed, statutorily eradicated, or judicially
29dismissed following probation.
30(4) The employer is prohibited by law from hiring an applicant
31who has been convicted of a crime.
No reimbursement is required by this act pursuant to
33Section 6 of Article XIII B of the California Constitution because
34the only costs that may be incurred by a local agency or school
35district will be incurred because this act creates a new crime or
36infraction, eliminates a crime or infraction, or changes the penalty
37for a crime or infraction, within the meaning of Section 17556 of
38the Government Code, or changes the definition of a crime within
P9 1the meaning of Section 6 of Article XIII B of the California