Amended in Assembly April 22, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1852

Introduced by Assembly Member Campos

February 19, 2014

An act to add Chapter 2.8 (commencing with Section 18950) to Division 8 of the Business and Professions Code, begin delete and to amend Section 11105.3 of the Penal Code, end delete relating to business.

LEGISLATIVE COUNSEL’S DIGEST

AB 1852, as amended, Campos. Business: services to minors: background checks.

Existing law generally provides requirements for the licensing of business establishments. Existing law authorizes specified entities to receive state summary criminal history information from the Department of Justice. Existing law prohibits an employer, as a condition of employment, from asking an applicant to disclose information regarding an arrest that did not result in a conviction, as specified.

This bill would require a business that provides services to minors, as defined, to provide written notice to the parent or guardian of a youth participating in the service offered by the business regarding the business’s policies relating to criminal background checks for employees who provide services to minors, as specified. begin delete This bill would also authorize a business that provides services to minors to receive summary criminal history from the Department of Justice and subsequent arrest notification and would also provide that the use of that information by the business would not violate specified employment laws. end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Chapter 2.8 (commencing with Section 18950)
is added to Division 8 of the Business and Professions Code, to
read:

 

Chapter  2.8. Businesses Providing Services to Minors

 

18950.  

(a) (1) A business that provides services to minors
begin delete shall, as a condition of obtaining and maintaining a business
license, end delete begin insert shall end insert provide written notice to the parent or guardian of
any minor receiving those services regarding the business’s policies
relating to obtaining criminal background checks for its employees.

(2) If criminal background checks are obtained for employees,
the written notice described in paragraph (1) shall also contain a
statement regarding whether the criminal background check
includes state and federal criminal history information and the
nature of the begin delete type end delete begin insert types end insert of offenses the program looks to identify.

(b) (1) As used in this section, a “business that provides services
to minors” means a business that meets both of the following
requirements:

(A) Its primary purpose is the providing begin insert of end insert an extracurricular
service or program of begin delete instruction end delete begin insert instruction, including, but not
limited to, academic tutors and instructors end insert begin insert , end insert for youth under 18
years of age.

(B) It has adult employees who have supervisory or disciplinary
power over a child or children.

(2) A “business that provides services to minors” shall not
include a licensed child day care facility as defined in Section
1596.750 of the Health and Safety Code or a day care center as
defined in Section 1596.76 of the Health and Safety begin delete Code end delete begin insert Code,
or any medical treatment facility or hospital end insert .

(c) As used in this section, “written notice” may include a
posting on the business’s Internet Web site.

(d) Nothing in subdivision (a) shall require or authorize a
business subject to these provisions to disclose confidential
criminal history information in violation of Article 3 (commencing
with Section 11100) of Chapter 1 of Title 1 of Part 4 of the Penal
Code.

(e) Compliance with this section shall not be deemed a violation
of Section 432.7 of the Labor Code.

begin delete

SEC. 2.  

Section 11105.3 of the Penal Code is amended to read:

11105.3.  

(a) Notwithstanding any other law, a human resource
agency or an employer may request from the Department of Justice
records of all convictions or any arrest pending adjudication
involving the offenses specified in subdivision (a) of Section 15660
of the Welfare and Institutions Code 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. The department shall furnish the
information to the requesting employer and shall also send a copy
of the information to the applicant.

(b) Any request for records under subdivision (a) shall include
the applicant’s fingerprints, which may be taken by the requester,
and any other data specified by the department. The request shall
be on a form approved by the department, and the department may
charge a fee to be paid by the employer, human resource agency,
or applicant for the actual cost of processing the request. However,
no fee shall be charged to a nonprofit organization. Requests
received by the department for federal level criminal offender
record information shall be forwarded to the Federal Bureau of
Investigation by the department to be searched for any record of
arrests or convictions.

(c) (1) Where a request pursuant to this section reveals that a
prospective employee or volunteer has been convicted of a
violation or attempted violation of Section 220, 261.5, 262, 273a,
273d, or 273.5, or any sex offense listed in Section 290, except
for the offense specified in subdivision (d) of Section 243.4, and
where the agency or employer hires the prospective employee or
volunteer, the agency or employer shall notify the parents or
guardians of any minor who will be supervised or disciplined by
the employee or volunteer. A conviction for a violation or
attempted violation of an offense committed outside the State of
California shall be included in this notice if the offense would have
been a crime specified in this subdivision if committed in
California. The notice shall be given to the parents or guardians
with whom the child resides, and shall be given at least 10 days
prior to the day that the employee or volunteer begins his or her
duties or tasks. Notwithstanding any other provision of law, any
person who conveys or receives information in good faith and in
conformity with this section is exempt from prosecution under
Section 11142 or 11143 for that conveying or receiving of
information. Notwithstanding subdivision (d), the notification
requirements of this subdivision shall apply as an additional
requirement of any other provision of law requiring criminal record
access or dissemination of criminal history information.

(2) The notification requirement pursuant to paragraph (1) shall
not apply to a misdemeanor conviction for violating Section 261.5
or to a conviction for violating Section 262 or 273.5. Nothing in
this paragraph shall preclude an employer from requesting records
of convictions for violating Section 261.5, 262, or 273.5 from the
Department of Justice pursuant to this section.

(d) Nothing in this section supersedes any law requiring criminal
record access or dissemination of criminal history information. In
any conflict with another statute, dissemination of criminal history
information shall be pursuant to the mandatory statute. This
subdivision applies to, but is not limited to, requirements pursuant
to Article 1 (commencing with Section 1500) of Chapter 3 of, and
Chapter 3.2 (commencing with Section 1569) and Chapter 3.4
(commencing with Section 1596.70) of, Division 2 of, and Section
1522 of, the Health and Safety Code, and Sections 8712, 8811,
and 8908 of the Family Code.

(e) The department may adopt regulations to implement the
provisions of this section as necessary.

(f) As used in this section, “employer” means any nonprofit
corporation or other organization specified by the Attorney General
which employs or uses the services of volunteers in positions in
which the volunteer or employee has supervisory or disciplinary
power over a child or children.

(g) As used in this section, “human resource agency” means a
public or private entity, excluding any agency responsible for
licensing of facilities pursuant to the California Community Care
Facilities Act (Chapter 3 (commencing with Section 1500)), the
California Residential Care Facilities for the Elderly Act (Chapter
3.2 (commencing with Section 1569)), Chapter 3.01 (commencing
with Section 1568.01), and the California Child Day Care Facilities
Act (Chapter 3.4 (commencing with Section 1596.70)) of Division
2 of the Health and Safety Code, responsible for determining the
character and fitness of a person who is:

(1) Applying for a license, employment, or as a volunteer within
the human services field that involves the care and security of
children, the elderly, the handicapped, or the mentally impaired.

(2) Applying to be a volunteer who transports individuals
impaired by drugs or alcohol.

(3) Applying to adopt a child or to be a foster parent.

(h) Except as provided in subdivision (c), any criminal history
information obtained pursuant to this section is confidential and
no recipient shall disclose its contents other than for the purpose
for which it was acquired.

(i) (1) As used in this subdivision, “community youth athletic
program” means an employer having as its primary purpose the
promotion or provision of athletic activities for youth under 18
years of age.

(2) A community youth athletic program, may request state and
federal level criminal history information pursuant to subdivision
(a) for a volunteer coach or hired coach candidate. The director of
the community youth athletic program shall be the custodian of
records.

(3) A community youth athletic program may request from the
Department of Justice subsequent arrest notification service, as
provided in Section 11105.2, for a volunteer coach or a hired coach
candidate.

(j) (1) A business licensee subject to the provisions of Section
18950 of the Business and Professions Code is an employer for
purposes of subdivision (a).

(2) A business licensee described in paragraph (1), may request
from the Department of Justice subsequent arrest notification
service, as provided in Section 11105.2, for an employee of the
business.

(k) Compliance with this section does not remove or limit the
liability of a mandated reporter pursuant to Section 11166.

end delete