BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2777


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          Date of Hearing:  April 19, 2016
          Counsel:               Sandra Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                      2777 (Nazarian) - As Amended  April 14, 2016




          SUMMARY:  Allows, but does not require, a "transportation  
          network company" (TNC) to ask the Department of Justice (DOJ) to  
          provide summary criminal history information for its employees  
          and contractors. Specifically, this bill:  

          1)Requires the DOJ to provide to a TNC, upon request, the  
            following information for a person employed, retained,  
            contracted, or otherwise compensated to perform services  
            coordinated by that company: 

             a)   State summary criminal history information as specified,  
               and,

             b)   Subsequent arrest notification services, as specified.

          2)Requires the DOJ to charge a TNC a fee that sufficiently  
            covers the cost of processing such a request.

          3)Defines a "TNC" as it is already defined in the Public  
            Utilities Code. 

          EXISTING LAW:  









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          1)Requires the DOJ to furnish state summary criminal history  
            information to specified entities, if needed in the course of  
            their duties, provided that when information is furnished to  
            assist an agency, officer, or official of state or local  
            government, a public utility, or any other entity in  
            fulfilling employment, certification, or licensing duties,  
            specified restrictions listed in the Labor Code are followed.   
            (Pen. Code,  11105, subd. (b).)

          2)Allows the DOJ to furnish state summary criminal history  
            information to specified entities and, when specifically  
            authorized, federal-level criminal history information, upon a  
            showing of a compelling need, provided that when information  
            is furnished to assist an agency, officer, or official of  
            state or local government, a public utility, or any other  
            entity in fulfilling employment, certification, or licensing  
            duties, specified restrictions listed in the Labor Code are  
            followed.  (Pen. Code,  11105, subd. (c).)

          3)Allows DOJ to charge a fee to reimburse department costs, and  
            a surcharge to fund system maintenance and improvements,  
            whenever state summary criminal history information is  
            furnished as the result of an application and is to be used  
            for employment, licensing, or certification purposes.  Allows,  
            notwithstanding any other law, any person or entity required  
            to pay a fee to DOJ for information received under this  
            provision to charge the applicant a fee sufficient to  
            reimburse the person or entity for this expense.  (Pen. Code,  
             11105, subd. (e).)

          4)States that, notwithstanding any other law, the DOJ may  
            require the submission of fingerprints for the purpose of  
            conducting criminal history information checks that are  
            authorized by law.  (Pen. Code,  11105, subd. (i).)

          5)States that, notwithstanding any other law, whenever state  
            summary criminal history information is initially furnished as  
            the result of an application by an agency, organization, or  
            individual or by an authorized transportation company, as  
            specified, and the information is to be used for employment,  
            licensing, or certification purposes, then DOJ shall  
            disseminate the following information:








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             a)   Every conviction rendered against the applicant, except  
               a conviction for which relief has been granted pursuant to  
               Section 1203.49; 

             b)   Every arrest for an offense for which the applicant is  
               presently awaiting trial, whether the applicant is  
               incarcerated or has been released on bail or on his or her  
               own recognizance pending trial; and,

             c)   Sex offender registration status of the applicant.   
               (Pen. Code,  11105, subd. (p).)

          6)Authorizes, notwithstanding any other law, a human resource  
            agency or an employer to request from DOJ records of all  
            convictions or any arrest pending adjudication involving  
            specified offenses of a person who applies for a license,  
            employment, or volunteer position, in which he or she would  
            have supervisory or disciplinary power over a minor or any  
            person under his or her care.  Requires DOJ to furnish the  
            information to the requesting employer and also send a copy of  
            the information to the applicant.  (Pen. Code,  11105.3,  
            subd. (a).)

          7)Allows, notwithstanding any other law, a contract or  
            proprietary security organization to request criminal history  
            information concerning its prospective employees, as  
            specified.  (Pen. Code,  11105.4.)

          8)Punishes as a misdemeanor any person authorized by law to  
            receive a record or information obtained from a record who  
            knowingly furnishes the record or information to a person who  
            is not authorized by law to receive the record or information.  
             (Pen. Code,  11142.)

          9)Prohibits an employer, whether a public agency or private  
            individual or corporation, to ask an applicant for employment  
            to disclose, through any written form or verbally, information  
            concerning an arrest or detention that did not result in  
            conviction, or information concerning a referral to, and  
            participation in, any pretrial or posttrial diversion program,  
            nor shall any employer seek from any source whatsoever, or  








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            utilize, as a factor in determining any condition of  
            employment including hiring, promotion, termination, or any  
            apprenticeship training program or any other training program  
            leading to employment, any record of arrest or detention that  
            did not result in conviction, or any record regarding a  
            referral to, and participation in, any pretrial or posttrial  
            diversion program.  (Labor Code ,  432.7, subd. (a).)

          10)Provides that the California Public Utilities Commission  
            (PUC) may fix rates and establish rules for the transportation  
            of passengers and property by transportation companies,  
            prohibit discrimination, and award reparation for the exaction  
            of unreasonable, excessive, or discriminatory charges.  
            (Article XII, 4 of the California Constitution)

          11)Establishes the PUC's authority to regulate, require license  
            or permit to operate, require insurance and workers  
            compensation, take appropriate enforcement action and other  
            provisions related to passenger stage corporations and  
            transportation charter-party carriers.  (Pub. Util. Code,    
            1031 et seq and5351).

          12)Defines a "transportation network company" as "an  
            organization, including, but not limited to, a corporation,  
            limited liability company, partnership, sole proprietor, or  
            any other entity, operating in California that provides  
            prearranged transportation services for compensation using an  
            online-enabled application or platform to connect passengers  
            with drivers using a personal vehicle."  (Pub. Util. Code,   
            5431.)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "TNCs provide  
            prearranged transportation services for compensation using  
            online-enabled application or platform (such as smart phone  
            apps) to connect passengers with drivers using their personal  
            vehicles. Unfortunately, high-profile incidents have arisen,  
            involving drivers accused of assaulting, kidnapping, raping,  
            harassing and stealing from customers. These incidents point  








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            to the need to allow TNCs to request a DOJ background check.  
            By allowing TNC to access DOJ criminal history databases,  AB  
            2777 gives TNCs another tool in its toolbox to uncover  
            criminal history not discovered through traditional methods,  
            prevent fraud and enhance its goal of providing safe and  
            reliable service."

          2)Background:  Different types of transportation companies  
            (e.g., TNCs, limousines, taxi cabs) are regulated differently.  
             Rates, routes, service areas, insurance requirements, vehicle  
            inspections, and driver requirements vary.  An example of  
            different rules for similar competitors is the requirement for  
            background checks.  Some local governments, including the City  
            of Los Angeles, require extensive background checks using  
            fingerprints and the United States Department of Justice  
            database for taxis.  The PUC requires TNCs to perform criminal  
            background checks on their drivers, but does not require  
            fingerprints or the use of the DOJ database.  (The PUC is  
            currently considering whether to require fingerprints.)  And  
            those rules do not require any background checks on other  
            charter-party carriers, such as limousines.
          
          3)Summary Criminal History Information:  State summary criminal  
            history information is the master record of information  
            compiled by the DOJ pertaining to the identification and  
            criminal history of any person, such as name, date of birth,  
            physical description, fingerprints, photographs, arrests,  
            dispositions, and similar data.  (Pen. Code,  11105, subd.  
            (a).)  State summary criminal history information commonly is  
            referred to by the acronym "RAP sheet," which is short for  
            Record of Arrests and Prosecutions.

          The disclosure of criminal history information is closely  
            guarded.  "The language of Penal Code section 13300 et seq.,  
            demonstrates that the Legislature intended nondisclosure of  
            criminal offender record information to be the general rule."   
            (Westbrook v. County of Los Angeles (1994) 27 Cal.App.4th 157,  
            164.)  While some individuals and entities are entitled to  
            receive the information if it is needed in the course of their  
            duties, others can obtain that information only upon a showing  
            of a compelling need and subject to Labor Code provisions  
            which regulates inquiries by employers into an employee's  








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            arrest record.  (Id. at pp. 162-163.)  Some examples of  
            employers authorized to receive state summary criminal history  
            information from DOJ include banks, private security, school  
            contract employees.  

          This bill would require DOJ to give to TNC companies the state  
            summary criminal history information upon the company's  
            request.  However, as drafted, DOJ is likely unable to comply  
            because there is no language in the bill requiring the  
            prospective employee's or contractor's fingerprints to be  
            submitted.  Should the bill be amended to include the  
            following:

          "A transportation network company may submit to the Department  
            of Justice fingerprint images and related information required  
            by the Department of Justice of all persons intended for  
            employment, employed, retained, contracted, or otherwise  
            compensated to perform or coordinate services, as defined by  
            Section 5431 of the Public Utilities Code, for the purposes of  
            obtaining information as to the existence and content of a  
            record of state convictions and state arrests and also  
            information as to the existence and content of a record of  
            state arrests for which the Department of Justice establishes  
            that the person is free on bail or on his or her recognizance  
            pending trial or appeal."

          4)Arguments in Support:

             a)   According to the Greater California Livery Association  
               (GCLA), "The safety of California's traveling public is the  
               responsibility and primary goal of GCLA members in the  
               provision of service to their clients; the achievement of  
               this goal includes assuring our passengers of the  
               integrity, conduct, and competence of our drivers and the  
               safety of our vehicles.  Our members accomplish this  
               through criminal background checks, driver training, drug  
               and alcohol testing, knowledge of driver infractions and  
               rigid safety requirements and inspections.  It is not  
               unreasonable to expect all providers of public  
               transportation services to provide and guarantee adherence  
               to the goal of providing safe, reliable transportation  
               service.  Assembly Bill 2777 is a step toward achieving  








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               that goal."

             b)   According to the California Labor Federation, "In April  
               of this year, Uber agreed to pay $10 million to settle  
               allegations by California prosecutors that it misled  
               passengers about the quality of its driver background  
               checks.  A 2015 report by researchers at City University of  
               New York recommended biometric fingerprint background  
               checks for all for-hire drivers, including TNCs, and that  
               the public should not rely on private companies  
               'self-regulating.'"

          5)Related Legislation:  

             a)   AB 1289 (Cooper) was substantially amended in the Senate  
               to require a transportation network company to conduct  
               comprehensive criminal background checks for each  
               participating driver that include local, state, and federal  
               law enforcement records. The bill would prohibit a  
               transportation network company from contracting with,  
               employing, or continuing to retain a driver if he or she  
               has specified convictions.  AB 1289 is pending in the  
               Senate Energy, Utilities and Communications Committee.

             b)   AB 1857 (Rodriguez) requires law enforcement to inform  
               clinical staff of an acute care hospital whether a person  
               transported to the hospital has a violent criminal history,  
               as indicated by local summary criminal history information,  
               and may pose a danger to staff.    The hearing on this  
               bill, which is pending in this Committee, was canceled at  
               the request of author.

             c)   SB 1035 (Hueso), requires, among other things, the PUC  
               to study several driver background check protocols,  
               including the United States Department of Justice  
               background check, and to adopt any that would enhance  
               public safety by capturing records of any criminal offense.  
                SB 1035 is scheduled to be heard by the Senate  
               Transportation and Housing Committee on April 19, 2016.


          6)Prior Legislation:  








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             a)   AB 1422 (Cooper), Chapter 791, Statutes of 2015,  
               requires transportation network companies to participate in  
               the Department of Motor Vehicles Employer Pull Notice  
               System to regularly check the driving records of a  
               participating driver.  

             b)   AB 2404 (Eggman), Chapter 472, Statutes of 2014,  
               requires the DOJ to disseminate an applicant's sex offender  
               registration status whenever DOJ furnishes state or federal  
               summary criminal history information to specified entities  
               as a result of an employment, licensing, or certification  
               application.

             c)   AB 2343 (Torres), Chapter 256, Statutes of 2012,  
               required that when state or federal summary criminal  
               history information is furnished to an agency, organization  
               or individual, a copy of the information be provided to the  
               person about whom the information relates if there is an  
               adverse employment, licensing, or certification decision.

             d)   AB 1628 (Beall), of the 2011-12 Legislative Session,  
               among other provisions, would have required a private  
               entity doing business in the state that rents, leases, or  
               uses public property and has an employee, member, agent,  
               licensee, or representative who will access the property  
               and who has duties involving close interaction with  
               children on a regular basis to perform an enhanced  
               background check, as specified, on the employee, member,  
               agent, licensee, or representative.  AB 1628 failed passage  
               in the Committee on Appropriations.

          REGISTERED SUPPORT / OPPOSITION:
          
          Support

          California Labor Federation
          Greater California Livery Association

          Opposition
          
          None








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          Analysis Prepared  
          by:              Sandy Uribe / PUB. S. / (916) 319-3744