BILL ANALYSIS �
AB 163
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Date of Hearing: March 21, 2011
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 163 (Jeffries) - As Introduced: January 19, 2011
SUBJECT : Department of Forestry and Fire Protection:
employment: criminal background checks
SUMMARY : Subjects an applicant for employment with California
Department of Forestry and Fire Protection (CDF) or the Board of
Forestry (Board) to criminal background checks, including
convictions and arrests, to determine whether the applicant is
eligible for employment.
EXISTING LAW :
1)Requires the Department of Justice (DOJ) to maintain state
summary criminal history information, defined as information
compiled by the Attorney General (AG) pertaining to the
identification and criminal history of any person, such as
name, date of birth, physical description, fingerprints,
photographs, date of arrests, arresting agencies and booking
numbers, charges, dispositions, and similar data about the
person.
2)Provides that the AG must furnish summary criminal history
information to any state agency if the criminal history
information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable
to the subject person of the state summary criminal history
information, and contains requirements or exclusions, or both,
expressly based upon that specified criminal conduct.
3)Prohibits an employer, whether a public agency or private
individual or corporation, from asking an applicant for
employment to disclose information concerning an arrest or
detention that did not result in conviction.
4)Subjects an Emergency Medical Technician (EMT) certificate
candidate or holder, on and after July 1, 2010, to a criminal
background check; if a background check has been conducted on
an EMT certified prior to July 1, 2010, then the certifying
entity or employer must verify in writing to the Emergency
Medical Services Authority that a background check has been
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conducted and that nothing in the check would preclude the EMT
from certification.
THIS BILL :
1)Defines an "applicant" as a person applying for permanent,
full-time employment with CDF or the Board.
2)Requires an applicant to submit fingerprint images, his/her
social security number, and related information to CDF for a
state and federal level criminal offender record information
search, including subsequent arrest information, and to
determine whether the applicant is eligible for employment.
3)Requires CDF, prior to hiring an applicant for employment with
CDF or the Board, to electronically submit to the DOJ
fingerprint images and related information on the applicant
for the purposes of obtaining information as to the existence
and content of a record of state or federal convictions, state
or federal arrests, and arrests for which an individual is
free on bail pending trial or appeal.
4)Requires CDF to request DOJ to provide subsequent arrest
notification services for an applicant.
5)Requires DOJ to charge a fee sufficient to cover the cost of
processing the criminal background request. CDF may not
assess a fee on the applicant for purposes of conduction the
background check.
6)Exempts EMTs from the requirements of the bill under specified
circumstances.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, "Firefighters hold a
position of authority and responsibility. Firefighters are
welcomed into people's homes and businesses without fear for
their personal safety or their prized possessions. If a
firefighter candidate is of questionable ethical or moral
character, he or she may ultimately become a liability for the
hiring agency. This could erode public trust and compromise the
department."
1)Applies to Non-Firefighter Positions : The bill applies to a
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person applying for permanent, full-time employment with CDF
and the Board-it is not specific to just firefighter
applicants. The author's arguments in support of this bill
are focused on the ethical and moral character of
firefighters. The author gives no reasons why this bill
should also apply to applicants seeking non-firefighting jobs.
2)Most CDF firefighters will already be subject to background
checks : AB 2917 (Torrico), Chapter 274, Statutes of 2008,
subjects an EMT certificate candidate or holder, on and after
July 1, 2010, to criminal background checks, including a
search for subsequent arrest information. Employers who hire
an EMT certified prior to this date must verify that a
background check has been performed and that nothing would
preclude the EMT from being certified. According to CDF in
2010, over 76 percent of its employees are certified as EMTs.
CDF also employs approximately 300 peace officers, who are
currently subject to background checks. As of July 1, 2010,
CDF must verify that those firefighters holding an EMT
certificate prior to this date have been subject to background
checks. Increasingly, in order to successfully compete for
limited firefighting positions, applicants will have obtained
an EMT certificate prior to applying for a position. Thus, AB
2917 will likely accomplish the purposes of this bill.
Finally, according to DOJ, Section 11105 of the Penal Code
already authorizes CDF to subject applicants to background
checks should it decide that it is warranted.
3)Conservation Camp Inmates : The state, through the Department
of Corrections and Rehabilitation, implements the Conservation
Camp program. The primary mission of this program is to
provide agencies, such as CDF, an able-bodied, trained work
force for fire suppression and other emergencies such as
floods and earthquakes. The Conservation Camp inmates average
10 million work hours per year and save the state more than
$80 million a year on average. This bill may prejudice the
hiring of inmates trained as firefighters by CDF when they are
ready to enter the work force.
4)Legal issues with criminal background check : The bill
generally states that the applicant's criminal background
information must be used "to determine whether the applicant
is eligible for employment." The federal Civil Rights Act
prohibits such general use of criminal background information
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to make employment decisions. Specifically, according to the
U.S. Equal Employment Opportunity Commission, which enforces
the employment laws under the Civil Rights Act, "an employer
may not base an employment decision on the conviction record
of an applicant?absent business necessity. Business necessity
can be established where the?applicant is engaged in conduct
which is particularly egregious or related to the position in
question." "Business necessity" is not considered in this
bill.
5)Legal issues with arrest information : The bill requires a
background check to include state or federal arrest
information regardless of whether the arrest led to a
conviction. This is inconsistent with Section 432.7 of the
Labor Code, which prohibits an employer from "ask�ing] an
applicant for employment to disclose, through any written form
or verbally, information concerning an arrest or detention
that did not result in conviction."
Additionally, the bill would likely violate the Civil Rights
Act since it authorizes broad general inquiries about arrests.
According to the U.S. Equal Employment Opportunity
Commission, "an employer will seldom be able to justify making
broad general inquiries about an employee's or applicant's
arrests." Even if a valid inquiry is made, the Civil Rights
Act requires the employer to examine the surrounding
circumstances and also offer the applicant an opportunity to
explain the circumstances of the arrest(s). The bill does not
provide a process to meet these requirements of the Civil
Rights Act.
REGISTERED SUPPORT / OPPOSITION :
Support
None on File
Opposition
All of Us or None-Sacramento
East Bay Community Law Center
Legal Services for Prisoners with Children
National Employment Law Project
Stanford Community Law Clinic
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Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092