BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1852 (Campos) 2
As Amended May 5, 2014
Hearing date: June 17, 2014
Business and Professions Code
MK:mc
BUSINESS SERVICES TO MINORS:
BACKGROUND CHECKS
HISTORY
Source: Author
Prior Legislation: AB 465 (Bonilla and Maienschein) -
Chapter 146, Stats. 2014
AB 1027 (Bonilla) - 2013 held Assembly Public
Safety
Support: Crime Victims United of California
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
SHOULD THE LAW REQUIRE THAT A BUSINESS PROVIDING SERVICES TO MINORS
DISCLOSE TO THE PARENTS OR GUARDIANS THE BUSINESS'S POLICIES
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RELATING TO BACKGROUND CHECKS OF EMPLOYEES?
PURPOSE
The purpose of this bill is to require a business providing
services to minors, including but not limited to academic tutors
and instructors of extracurricular activities, to disclose to
parents or guardians the business's policies relating to
background checks of employees and the type of background check
conducted, and exempts certain child care and medical facilities
from this requirement.
Existing law requires the California Department of Justice (DOJ)
to maintain state summary criminal history information and to
furnish state summary criminal history information to
statutorily authorized entities under certain circumstances.
(Penal Code, � 11105.)
Existing law authorizes 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 a volunteer position
in which he or she would have supervisory or disciplinary power
over a minor or any person under his or her care. (Penal Code,
� 11105.3(a).)
Existing law requires any request to DOJ for records to include
the applicant's fingerprints, and requires DOJ to forward
requests for federal level criminal offender record information
to the Federal Bureau of Investigation (FBI) to be searched for
any record of arrests or convictions. (Penal Code, �
11105.3(b).)
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Existing law requires the agency or employer to notify the
parents or guardians of any minor who will be supervised or
disciplined by the employee or volunteer at least 10 days before
the prospective employee's or volunteer's start date if a
request reveals that he or she has been convicted of specified
offenses and has been hired. (Penal Code, �11105.3(c).)
Existing law states that any criminal history information
obtained, as specified, is confidential and a recipient shall
not disclose its contents other than for the purpose for which
it was acquired. (Penal Code, �11105.3(h).)
Existing law authorizes DOJ to provide subsequent state or
federal arrest or disposition notification to any entity
authorized by state or federal law to receive state or federal
summary criminal history information to assist in fulfilling
employment, licensing, certification duties, or the duties of
approving relative caregivers and nonrelative extended family
members, upon the arrest or disposition of any person whose
fingerprints are maintained on file at DOJ or the FBI as the
result of an application for licensing, employment,
certification, or approval. (Penal Code,
� 11105.2(a).)
Existing law requires any entity that submits the fingerprints
of an applicant for employment, licensing, certification, or
approval to DOJ for the purpose of establishing a record at DOJ
or the FBI to receive notification of subsequent arrest or
disposition to immediately notify DOJ if the applicant is not
subsequently employed, or if the applicant is denied licensing
certification, or approval. (Penal Code, � 11105.2(f).)
Existing law prohibits a person who is required to register as a
sex offender because of a conviction for a crime in which the
victim was a minor under 16 years of age from being an employer,
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employee, or independent contractor or acting as a volunteer
with any person, group or organization in a capacity in which
the registrant would be working directly and in an unaccompanied
setting with minor children on more than an incidental and
occasional basis or have supervision or disciplinary power over
minor children, and makes a violation of this provision a
misdemeanor. (Penal Code, � 290.95(c)(e).)
This bill requires a business that provides services to minors
to 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.
This bill requires, if the business obtains criminal background
checks for employees, that the written notice include a
statement regarding whether the criminal background check
includes state and federal criminal history information and the
nature of the types of offenses the program looks to identify.
This bill defines a "business that provides services to minors"
to mean a business that meets both of the following:
a) Its primary purpose is the providing of an extracurricular
service or program of instruction, including, but not limited
to, academic tutors and instructors of extracurricular
activities for purpose of learning; and,
b) It has adult employees who have supervisory or disciplinary
power over a child or children.
This bill specifies that a "business that provides services to
minors" does not include a licensed child day care facility, a
day care center, or any medical treatment facility or hospital,
as specified.
This bill specifies that "written notice" may include posting
the information on the business's internet Web site.
This bill provides that nothing in this bill shall require or
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authorize a business, as specified, to disclose confidential
criminal history information, as specified.
This bill specifies that compliance of these requirements is not
a violation of the Labor Code, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
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inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
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In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Need for This Bill
According to the author:
Parents and guardians of children should have as much
information available to them as possible so that they
can make the best decisions for their children. This
should include information on whether or not a business
that provides academic tutoring or extracurricular
instruction for purposes of learning does background
checks on their employees. This information should be
disclosed to parents.
This information is available for employees of youth
athletic programs but not for ALL businesses providing
services to minors. This bill will expand protections
that will help allow parents to make informed decisions
about which programs they enroll their children in.
This bill seeks to operate as a safeguard measure that
would provide greater protections against children
being assaulted, abused and harmed.
2. Notice to Parents
School employees and daycare employees must have criminal record
check in order to be employed. Existing law also permits but
does not require other business' that provides services to
minors to request from the Department of Justice the criminal
history information of their employees.
This bill would requires a business that provides services to
minors to provide notice to the parents or guardian of any minor
using their services stating the business's polices relating to
obtaining criminal background checks of its employees. Notice
can include posting the information on the business' website.
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3. Related Legislation
AB 230 (Maienschein), also scheduled to be heard June 17,
requires a community youth athletic program, beginning January
1, 2016, to provide written notice of its criminal background
check policy to the parent or guardian of any youth
participating in the program
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