BILL ANALYSIS �
AB 1198
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Date of Hearing: January 15, 2014
ASSEMBLY COMMITTEE ON ACCOUNTABILITY AND ADMINISTRATIVE REVIEW
Jim Frazier, Chair
AB 1198 (Jones-Sawyer) - As Amended: January 6, 2014
SUBJECT : Public contracts: bidders: employment practices.
SUMMARY : Prohibits the state from accepting a bid for a
contract from an entity that asks an applicant for employment to
disclose his or her conviction history unless the employer has
determined the applicant meets the minimum qualifications for
the position. Specifically, this bill :
1)Prohibits the state from accepting a bid for a contract from
an entity that asks an applicant for employment who will
assist the entity in fulfilling the contract to disclose
information concerning the applicant's conviction history
unless the employer has determined the applicant meets the
minimum qualifications for the position.
2)Specifies that (1) above applies to both oral and written
disclosures and disclosures made on an initial employment
application.
3)Exempts positions for which an employer is otherwise required
by state or federal law to conduct a conviction or criminal
history background check or any contract position with a
criminal justice agency, as defined in the Penal Code, from
(1) above.
4)Clarifies that this bill shall not be construed to prevent the
state from accepting a bid from a contractor that conducts a
conviction history background check after complying with all
of the requirements of this bill.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, six states, 32 U.S. cities,
and eight local governments in California have removed the
conviction history box from job applications in public
employment and contracting and, by doing so, have recognized
that employment for individuals with criminal backgrounds is
critical to their successful reentry into society. The author
states that this bill is intended to give thousands of former
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prisoners a fair shot at employment while simultaneously
reducing the recidivism rate, increasing economic activity and
improving public safety.
Current law prohibits state and local agencies from asking
employment applicants to disclose information regarding their
conviction history until the agency has determined the applicant
meets the position's minimum employment qualifications. This
bill would apply these requirements to state bids by prohibiting
the state from accepting bids from contractors that perform
pre-employment background checks on employees, with certain
exceptions for criminal justice agencies and any positions where
a background check is otherwise required.
The Department of General Services (DGS) is the central
purchasing authority for all state departments and agencies.
DGS indicates that the number of contracts affected by this bill
is unclear as the state generally does not control contractors'
hiring practices and this bill does not identify a mechanism for
verifying contractors' compliance.
Supporters, representing various criminal justice advocacy
groups, state that this bill will ensure that entities
contracting with the state will not inquire about the conviction
history of a potential employee until after the initial
employment application. They contend that formerly incarcerated
individuals have the right to employment and should not be
judged solely by their conviction history but rather by their
qualifications.
The Southern California Contractors Association (SCCA), which
represents civil engineer contractors, objects to the potential
unintended consequences of this bill. Specifically, SCCA is
concerned that, as a result of this bill, a contractor would be
forced to dismiss a long-term construction worker who freely
admitted to a criminal history and refill the position with a
worker eligible under this bill in order for the contractor to
bid on a state contract project. Additionally, SCCA contends
that this bill could create new grounds for a contractor that
loses a bid to challenge the awarding of a contract. The United
Contractors, representing union-affiliated contractors, is
concerned that this bill does not exempt in-office employees and
should only apply to employees at the job site and not to those
working in office positions. Other opponents from the fencing,
building, and engineering contracting industries note that a
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contractor needs to know from the outset before hiring an
employee what his past criminal record looks like and this bill
appears to be a "full employment act for attorneys" that is
looking to ensnare contractors.
AUTHOR'S AMENDMENTS . The author proposes to narrow this bill to
apply to public works and transportation contracts; delete
Section 2, which would have applied to contracts for goods and
services; and clarify this bill as follows:
SECTION 1. Section 10186 is added to the Public Contract Code,
to read:
10186. (a) The state shall not accept a bid from a person or
entity seeking a public works or transportation contract if
that person or entity that asks an applicant for employment
who will assist the person or entity in fulfilling the
contract with the state to disclose information concerning the
conviction history of the applicant, unless until the employer
employing person or entity has determined that the applicant
meets the minimum employment qualifications as stated in the
any notice issued for the position. This subdivision applies
to both oral and written disclosures and disclosures made on
an initial employment application.
(b) This section shall not apply to a position for which an
employer or government agency is otherwise required by state
or federal law to conduct a conviction or criminal history
background check or to any contract position with a criminal
justice agency, as that term is defined in Section 13101 of
the Penal Code.
(c) This section shall not be construed to prevent the state
from accepting a bid from a person or entity that conducts a
conviction history background check after complying with all
of the provisions of subdivision (a).
In order to facilitate consideration of this bill by the
Assembly Appropriations Committee, these amendments will be
taken when the bill is heard there.
PRIOR LEGISLATION .
1)AB 218 (Dickinson), Chapter 699, Statutes of 2013, prohibits,
beginning on July 1, 2014, a state or local agency from asking
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an employment applicant to disclose, orally or in writing,
information concerning his or her conviction history until the
agency has determined that the applicant meets the minimum
employment qualifications for the position. Exempts from this
prohibition a position for which a state or local agency is
otherwise required by law to conduct a conviction history
background check, and any position within a criminal justice
agency, as specified.
2)AB 870 (Jones-Sawyer) of 2013, which included provisions
similar to this bill, would have applied to any application
for employment with an entity that submits a bid for a state
contract. AB 870 was held on the Assembly Appropriations
Committee Suspense File.
DOUBLE REFERRAL . This bill has been double referred. It was
heard in the Assembly Judiciary Committee on January 14, 2014.
REGISTERED SUPPORT / OPPOSITION :
Support
All of Us or None (sponsor)
Legal Services for Prisoners with Children (sponsor)
A New Way of Life Reentry Project
Center for Young Women's Development
Center on Juvenile and Criminal Justice
Children's Defense Fund - California
Drug Policy Alliance
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
National Employment Law Project
The Greenlining Institute
Time for Change Foundation
Opposition
California Fence Contractors' Association
California Chapter of the American Fence Association
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
Southern California Contractors Association
United Contractors
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Analysis Prepared by : Cassie Royce / A. & A.R. / (916)
319-3600