BILL ANALYSIS                                                                                                                                                                                                    





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               AB 1843      Hearing Date:    June 22,  
          2016
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          |Author:    |Mark Stone                                           |
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          |Version:   |May 27, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Brandon Seto                                         |
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                Subject:  Applicants for employment: criminal history


          KEY ISSUE
          
          Should the Legislature prohibit employers from using as a  
          condition of employment, or from asking applicants to disclose,  
          any information related to an applicant's arrest, detention or  
          involvement in any other specified process under the  
          jurisdiction of juvenile court law, provided that it did not  
          result in a conviction?


          ANALYSIS
          
           Existing law  

                 Prohibits employers from asking an applicant for  
               employment to disclose, or from factoring as any condition  
               of employment, information concerning an arrest or  
               detention that did not result in a conviction, a referral  
               or participation in any pretrial or post-trial diversion  
               program, or a conviction that has been dismissed or ordered  
               sealed, with the exception of sealed juvenile court  
               records, and others as specified (Labor Code 432.7).









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                 Forbids those who are authorized to possess, access, or  
               receive criminal offender record information maintained by  
               a local law enforcement criminal justice agency pertaining  
               to an arrest or detention or proceeding that did not result  
               in a conviction, including a referral to, and participation  
               in, any pretrial or post-trial diversion program, to  
               disclose such information to any person not authorized by  
               law to receive it (Labor Code 432.7).

                 Defines "conviction" to include a plea, verdict, or  
               finding of guilt regardless of whether a sentence is  
               imposed by the court (Labor Code 432.7). 
           

          This Bill  
          
                 Prohibits employers from asking an applicant for  
               employment to disclose 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, or seek or utilize any such information  
               as a factor in determining any condition of employment.

                 Clarifies that the current definition of "conviction"  
               under existing law does not include any adjudication by a  
               juvenile court or any other court order or action taken  
               with respect to a person under the process and jurisdiction  
               of juvenile court law.

                 Expands the prohibition on the disclosure, possession,  
               or receipt of juvenile offender record information  
               pertaining to an arrest or detention or proceeding that did  
               not result in a conviction.

                 Includes participation in programs dealing with  
               juveniles in the definition of pretrial and post-trial  
               diversion programs that employers are prohibited from  
               asking an applicant about, or from factoring as a condition  
               of employment.  
          

          COMMENTS
          
          1.  Need for this bill?







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            Current law protects the records of adults who have had  
            arrests that did not lead to a conviction and adults who have  
            had their records ordered or automatically sealed from  
            disclosure to potential employers during the hiring process.   
            The legal effect of sealing and dismissal is that the offense  
            is deemed not to have occurred. 

            The author believes that these types of protections are  
            important components of reducing recidivism because the  
            presence of a criminal history has been shown to reduce the  
            likelihood of hiring and interview callbacks. While these  
            types of employment and hiring protections exist for adult  
            records, they do not exist for juveniles.  This bill seeks to  
            provide the same protections against employer inquiries into  
            juvenile offender criminal histories as those enjoyed by  
            adults.  In doing so, the author believes that this bill will  
            help improve the employment prospects of these affected  
            individuals and thus reduce recidivism. 

          2.  Proponent Arguments  :
            
            Proponents state that under current law, people with sealed  
            juvenile records do not have the same rights as adults with  
            sealed criminal records. Not only is this treatment unequal  
            and unfair, but California law attempts to give juveniles an  
            opportunity to demonstrate they can be rehabilitated.   
            Regrettably, existing law can serve as a barrier to employment  
            and does not reflect state policy regarding juvenile  
            rehabilitation. Juvenile records should be treated in the same  
            way that adult criminal records are treated when an employer  
            is questioning a job applicant.  Proponents believe that  
            employer questioning about sealed juvenile records should be  
            prohibited.

            Proponents add that several other states have strong,  
            effective laws protecting job applicants from having employers  
            question them about sealed juvenile records. Colorado,  
            Illinois, Nebraska, Oregon, Connecticut, and North Carolina,  
            in particular, restrict employer questioning of job applicants  
            concerning sealed juvenile records.  In California and around  
            the nation there is a growing juvenile justice system emphasis  
            on removing barriers to employment, higher education, and  
            military service for individuals emerging from juvenile  
            justice system involvement. Proponents argue that this measure  







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            is fully consistent with that trend.

          3.  Opponent Arguments  :

            The California Hospital Association (CHA) states that  
            California law provides health facilities with the ability to  
            inquire into arrest records for specified crimes if the  
            applicant would have access to patients or drugs. This  
            information may be solicited and used based on specific facts  
            and circumstances. Thus, if an applicant for a position in the  
            pharmacy disclosed that he had been arrested for a  
            drug-related crime 20 years ago and the charges were dropped,  
            that would be treated differently than if the individual had  
            been arrested for the same crime six months ago and the  
            charges were still pending.

            Given the myriad situations that pose risks for patients, CHA  
            believes that hospitals need to know the criminal history of  
            applicants. Where an applicant discloses a conviction for  
            assault 20 years ago but has a stellar employment history  
            since that time, that conviction may not preclude employment.  
            However, given the hospital environment, a similar conviction  
            that is more recent may justifiably preclude employment in a  
            position where the individual would have access to patients.  
            They argue that this overriding patient care concern does not  
            distinguish between an adult criminal conviction or a juvenile  
            adjudication.

            The California Chamber of Commerce argues that employers  
            should have access to juvenile adjudication determinations of  
            the court. Specifically, they believe that if a juvenile was  
            found guilty of a crime, that employers should be able to  
            inquire about such determinations in order to maintain a safe  
            environment for employees and consumers.
                 
          4.  Prior Legislation  :

                       AB 666 (Mark Stone), Chapter 368, Statutes of 2015  
                  - requires that records in the custody of law  
                  enforcement agencies, the probation department, or any  
                  other public agency having records pertaining to the  
                  case, must also be sealed in cases where a court has  
                  ordered a juvenile's records to be sealed.

                       SB 1038 (Leno), Chapter 249, Statutes of 2014 -  







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                  provides for the automatic dismissal of juvenile  
                  petitions and sealing of records when a juvenile  
                  offender successfully completes probation.

                       SB 530 (Wright), Chapter 721, Statutes of 2013 -  
                  excludes prior criminal convictions from consideration  
                  in employment decisions when the conviction has been  
                  judicially dismissed or the record has been expunged or  
                  sealed.
          

          SUPPORT
          
          Juvenile Court Judges of California (Sponsor) 
          California Catholic Conference 
          California Department of Justice, Attorney General Kamala D.  
          Harris
          California Teachers Association 
          COMMONWEAL: The Juvenile Justice Program
          Legal Services for Prisoners with Children
          LiUNA Locals 777 & 792 
          National Association of Social Workers
          Women in Non Traditional Employment Roles
          

          OPPOSITION
          
          California Association of Health Facilities
          California Chamber of Commerce
          California Hospital Association

                                          
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