BILL ANALYSIS Ó
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
AB 2777
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Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744