BILL ANALYSIS Ó
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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