Under existing law, evidence of a persons criminal history may be admissible in a civil action for various purposes.

This bill would prohibit evidence of the criminal history of an employee or former employee from being admitted, under specified circumstances, in a civil action that is based on the conduct of the employee or former employee against an employer, an employers agents, or an employers employees.

Date of Hearing: May 8, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2647

Author:(Rubio) – As Introduced Ver:February 15, 2018

SUBJECT: Evidence: criminal history information

KEY ISSUE: should a new law be enacted, making evidence of an employee's criminal history inadmissible against an employer in a civil action based on the conduct of the employee, even though existing rules of evidence already exclude irrelevant and unduly prejudicial evidence?

SYNOPSIS

This bill is sponsored by the Los Angeles Area Chamber of Commerce. The author and sponsor believe that this bill is a necessary follow-up to AB 1008 (Chap. 789, Stats. 2017), last year's "ban the box" or "fair chance" measure that prohibits an employer from asking about an applicant's criminal history during the initial stages of the interview process and requires an employer who denies an applicant employment because of the applicant's criminal conviction history to make an individualized assessment of whether that history adversely affects the applicant's ability to safely perform the duties of the job. The author contends that because employers are urged to consider applicants with criminal histories, they should be shielded from liability in a negligent hiring action in the event that the applicant, once employed, causes some harm. This bill seeks to protect the employer by providing that evidence of criminal conviction is not admissible against the employer in any action that arises out the employee's conduct. However, nothing in AB 1008 requires an employer to hire a person with a criminal conviction or absolves the employer of responsibility for making reasonable efforts to screen workers for their suitability for certain kinds of jobs. The following analysis concludes that the bill is unnecessary, premature, and overbroad. It is unnecessary because existing rules of evidence already ensure the inadmissibility of irrelevant and unduly prejudicial evidence; it is premature because AB 1008 only became effective this year, and it is too early to know what impact it will have on hiring patterns, let alone on employer's exposure to liability for hiring decisions; it is overbroad because, despite the focus of the author and sponsor on negligent hiring actions, the bill would apply to any civil action against the employer based on the employee's conduct. Moreover, as the opponents argue, this bill presumes that employees with a criminal record who have served their sentence pose a greater risk of causing harm in the workplace than other employees, even though this is the very kind of thinking that AB 1008 hoped to counter. The bill is supported by the LA Chamber of Commerce. It is opposed by many of the same organizations that supported or co-sponsored AB 1008.

SUMMARY: Prohibits evidence of the criminal history of an employee or former employee, under specified circumstances, in a civil action against the employer. Specifically, this bill:

1. Makes the criminal history of an employee or former employee inadmissible as evidence against an employer, an employer's agent, or an employer's other employees in a civil action based on the conduct of the employee or former employee under the following circumstances:
   1. The criminal history does not bear a direct relationship to the facts underlying the civil action.
   2. Before the occurrence of the acts giving rise to the civil action, any of the following occurred relative to the employee's or former employee's conviction:
      1. A court order sealed the record of the conviction.
      2. The conviction was reversed or vacated.
      3. The employee or former employee was pardoned for the conviction.
      4. The conviction was dismissed or expunged, as specified.
   3. The criminal history consists of an arrest or charge that did not result in a criminal conviction.

EXISTING LAW:

1. Makes it an unlawful employment practice for an employer with five or more employees to include on any application for employment any question that seeks the disclosure of an applicant's conviction history or to inquire into or consider the conviction of an applicant until that applicant has received a conditional offer. Requires an employer who intends to deny an applicant employment based in whole or in part on the applicant's criminal history to make an individualized assessment of whether the criminal history has an adverse relationship to duties of the job and provide a prescribed notice to the applicant. (Government Code Section 12952.)
2. Provides that no evidence is admissible except relevant evidence and that all relevant evidence is admissible except as otherwise provided by statute. (Evidence Code Sections 350-351.)
3. Provides that the court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its admission will waste time or create a substantial danger of undue prejudice, or confuse the issue, or mislead the jury. (Evidence Code Section 352.)
4. Provides, as a general rule, that character evidence, including evidence of a criminal conviction, is inadmissible. However, evidence of a criminal conviction may be admitted, under certain circumstances, to impeach the credibility of a witness if the nature of the crime speaks to the veracity of the witness. Specifies, however, that evidence of a criminal conviction to impeach a witness is inadmissible if a pardon or certificate of rehabilitation has been granted to the witness, or the conviction has been otherwise dismissed or expunged. (Evidence Code Sections 780, 786-788.)
5. Provides, subject to certain exceptions, that evidence of a person's character or a trait of his or her character is inadmissible when offered to prove his or her conduct on a particular occasion. However, this provision does not prohibit evidence that a person committed a crime, civil wrong or other act when relevant to prove some fact other than his or her disposition to commit such an act. Specifies further that nothing in this provision affects the admissibility of evidence offered to support or attack the credibility of a witness. (Evidence Code Section 1101.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Last year AB 1008 (Chap. 789, Stats. 2017) enacted the Fair Chance Act. So-called "fair chance" or "ban the box" legislation prohibits an employer from asking about an applicant's criminal history during the initial stages of the interview process and requires an employer who denies an applicant employment because of the applicant's criminal conviction history to make an individualized assessment of whether that history adversely affects the applicant's ability to safely perform the job. The bill before the Committee today is presented by the author and sponsor as a necessary follow up to AB 1008.

The bill would prohibit evidence of an employee's criminal history from being admitted as evidence against an employer in a civil action based on the employee's conduct. In particular, the author and sponsor have in mind a lawsuit against the employer for negligent hiring, should the employee with the criminal record cause some harm to a fellow employee or customer while performing the job. The author and sponsor contend that this measure will encourage employers to more willingly hire applicants with a criminal record and help fulfill the aims of AB 1008.

However, it is not at all clear that the aim of this bill is consistent with AB 1008, which is perhaps why the supporters and a co-sponsor of last year's AB 1008 oppose this bill. To begin with, nothing in AB 1008 requires an employer to hire a person with a criminal conviction or absolves the employer of the responsibility to make reasonable efforts to screen workers for their suitability for certain kinds of jobs. As explained more fully below, the bill is arguably unnecessary, premature, and overbroad.

Bill Arguably Unnecessary in Light of Existing Rules of Evidence: The most basic rule of evidence is that only "relevant" evidence is admissible and, as a corollary, all relevant evidence should be admitted, unless it is expressly excluded by statute. (Evidence Code Sections 350-351.) As a general rule, evidence of a prior criminal conviction is not admissible to show that the defendant had a propensity to commit the crime charged at trial. There are a number of important exceptions to this rule. For example, a criminal conviction may be introduced if, under the particular circumstances of the case, it shows the defendant had motive, opportunity, habits, or knowledge to commit the crime charged. In short, the record of conviction can be introduced to show some other relevant and disputed fact; but it cannot be used to show that the defendant had a disposition to commit the crime. Evidence of a criminal conviction may also be used to impeach the credibility of a witness, whether in a criminal or civil trial. Generally, this exception requires that the conviction was for a felony or a crime involving some inherent dishonesty, such as fraud. (Evidence Code Sections 352, 780, 786-788, 1101.)

In addition to the basic rule that evidence of a criminal conviction (like any other evidence) must be relevant to a disputed fact in order to be admissible, existing rules of evidence also create a number of specific barriers to the use of criminal conviction. For example, even when used to impeach the character of a witness, evidence of a conviction cannot be used if the defendant has been granted a pardon or issued a certificate of rehabilitation and pardon, or if the conviction has been expunged or otherwise dismissed. (Evidence Code Sections 786-788.) In addition, the Evidence Code gives the court discretion to exclude any evidence when it finds that the probative value of the evidence is substantially outweighed by the likelihood that admitting the evidence will waste time or create a substantial danger of undue prejudice, or if the court finds that it will confuse the issue or mislead the jury. (Evidence Code Section 352.)

In light of the above rules of evidence, it is not entirely clear why this bill is necessary. For example, subdivision (a) of the bill (page 2, lines 1-2) says that the criminal history cannot be admitted as evidence if it "does not bear a direct relationship to the facts underlying the civil action." But if the criminal history does not bear such a relationship, then a court would likely find that it was not relevant and therefore inadmissible. Similarly, subdivision (b) of the bill (page 2, lines 3-10) lists a number of preconditions for excluding the record that mirror existing law; for example, the conviction was reversed or vacated, the employee was pardoned, or the conviction was expunged. As noted above, these are the very factors that already make a criminal conviction inadmissible under the Evidence Code.

In addition to these existing limitations on the admissibility of criminal convictions, it is doubtful that a criminal conviction would meet the threshold requirement of relevance in the scenarios suggested by the author and sponsor. That is, the author and sponsor claim that this bill will make it easier for employers to hire applicants with criminal records, despite their criminal records. But if the employer admittedly hired a person with a criminal conviction, because the employer wanted to fulfill the spirit of AB 1008 and give the applicant a fair chance, then the fact of the employee's criminal record would not be a "disputed" fact and would, by the terms of the Evidence Code, be inadmissible. The author's background also makes reference to the requirements of AB 1008 that require an employer who denies an applicant a position, based in whole or in part on the criminal conviction, to make an individualized assessment of whether the conviction would adversely affect the duties of the job. However, if the employer "denies" the applicant the position, then by definition the employer cannot be accused of negligently hiring the applicant.

Criminal Convictions Usually Excluded in Criminal Trial to Protect Person Convicted: While the Evidence Code and the cases interpreting that code provide many examples in which a criminal record is excluded, those examples, for the most part, differ from the rule proposed by this bill in two fundamental ways. First, where an otherwise relevant criminal record is deemed inadmissible, it is usually because the court wants to protect the person with the criminal record. Second, this bill would make criminal convictions inadmissible in a civil suit, whereas most, though by no means all, rules barring the admissibility of criminal records apply in criminal cases. While criminal records may be inadmissible in a civil trial, the standards governing admissibility of prior convictions in civil cases are different from those in criminal proceedings. In Robbins v. Wong (1994), the court observed that given "the significant distinctions between the rights enjoyed by criminal defendants and civil litigants, and the diminished level of prejudice attendant to felony impeachment in civil proceedings, it is not unreasonable to require different standards of admissibility in civil and criminal cases.” (27 Cal.App.4th 261, 273.) In Robbins, the court concluded that article I, section 28(f) of the California Constitution, as well as any Supreme Court cases on this topic in the criminal arena, do not apply to civil cases. However, the court did hold that a trial court “may utilize such [criminal case] decisions to formulate guidelines for the judicial weighing of probative value against prejudicial effect under section 352.” (Id. at 274.) While the rules on inadmissibility of criminal records have generally been deemed most crucial in criminal cases, where the stakes are often higher, the law nonetheless provides for the exclusion of criminal records in civil actions using similar guidelines for balancing of probative value versus any unduly prejudicial or potentially misleading effects.

Bill is One-sided and Applies beyond Negligent Hiring Actions: Although the letters of support and author's background statements all stress that this bill is necessary to protect employers who hire persons with records from "negligent hiring actions," the language of the bill is broader than that. The bill applies not only to negligent hiring actions, but also to any action against the employer based upon the conduct an employee. For example, this bill could also be used in a common law tort action against an employer upon a theory of vicarious liability. Moreover, it could arise in a case in which an employee alleged harassment on the part of a fellow employee. While the employer could introduce a criminal conviction to impeach the testimony of the employee bringing the action, the employee would be prevented from introducing as evidence of a criminal conviction of the other employee.

Bill is Arguably Premature and Based upon Faulty Assumptions: This bill is based upon three related assumptions. First, the bill assumes that AB 1008 will cause employers to hire more applicants with a criminal record. Second, the bill assumes that hiring employees with a criminal record will expose the employer to a greater risk of actions alleging negligent hiring, hence the need for the protection offered by this bill. The second assumption is based on third assumption: that persons with a criminal record are more likely than other employees to cause harm to other workers or customers in the workplace. All of these assumptions are questionable. First, AB 1008 only went into effect in January of this year. As noted above, AB 1008 does not require employers to hire persons with criminal records, and it does not prohibit an employer from denying employment to an applicant because of the applicant’s criminal record. Simply put, AB 1008 has not been in place long enough to know if it will change hiring patterns, let alone result in more actions against employers alleging negligent hiring. Second, the Committee is not aware of any evidence that employees with criminal records are more likely to cause workplace harms than employees without criminal records. Moreover, as the opponents of this bill persuasively argue, this bill reflects the same preconceived notions that AB 1008 tried to combat: the notion that persons who have been convicted of a crime, yet who have served their debt to society, pose an ongoing danger to persons they encounter in the workplace. The only possible justification for this bill is that persons with a criminal record are more likely to cause workplace harm than employees without a criminal record, and therefore more likely to expose their employers to liability for hiring them. Yet there is no evidence to support this assumption. Thus, while the sponsor of this bill claims that this bill "reinforces the priorities of AB 1008," the groups that supported AB 1008 believe that the bill runs completely contrary to those priorities.

ARGUMENTS IN SUPPORT: This bill is sponsored by the Los Angeles Area Chamber of Commerce (LA Chamber), who claims that it will "encourage employers to adopt fair chance hiring practices by prohibiting an employee's criminal record from being introduced into negligent hiring lawsuits if the employer follows the outlined industry recognized guidelines." LA Chamber argues that while AB 1008 and related measures require employers to consider applicants who have a criminal record, "it also holds employers liable under California's negligent hiring supervision or retention law for 'failing to protect others' when they do." LA Chamber argues that "this creates confusion for employers regarding their exposure to risk, which often leaves them reticent to hire people with criminal records."

LA Chamber contends that "even if a negligent hiring case is not likely to end in a costly judgment, there are up-front costs associated with potential civil litigation that scares smaller companies away from conversations about fair chance hiring." LA Chamber concludes that by "legally establishing clear and concrete practices a business can follow to avoid a negligent-hiring suit, based on recognized industry guidelines, AB 2647 helps employers minimize their exposure to risk when considering applicants who have criminal records, and reinforces the priorities of AB 1008. AB 2647 will provide sensible protections to businesses from civil liability while they provide employment opportunities to people with criminal records."

ARGUMENTS IN OPPOSITION: Several organizations, some of whom supported or co-sponsored AB 1008, the Fair Chance Act, oppose this bill.

Opponents believe that "AB 2647 is an unnecessary bill that only serves to perpetuate the notion that people with records are more likely to harm co-workers or customers or that negligent hiring lawsuits are widespread and a threat to businesses who hire people with records. Neither of which are true." Opponents find this bill to be contrary to the "animating principle of AB 1008" because it only "reinforces harmful stereotypes and incorrectly suggests that additional protections against negligent hiring lawsuits are necessary despite the new fair chance hiring protections of AB 1008." Indeed, opponents argue, "there is no compelling empirical evidence documenting that people with criminal records are any more likely than any other group of workers to cause harm to customers or co-workers on the job and thus expose employers to increased liability for negligent hiring. In fact compliance with Fair Chance Act (AB 1008) will help limit any potential liability for negligent hiring because employers can show that they have a consistent policy in place that supports a finding of 'due diligence' to identify any 'foreseeable risk' of harm."

In addition, the opponents argue that AB 2647 is unnecessary "because the existing rules of evidence already make irrelevant evidence inadmissible," which would already exclude, in the language of the bill, "criminal history that does not bear a direct relationship to the facts underlying the civil action." Opponents also point that "under AB 1008 and Labor Code Section 432.7, an employer cannot even consider any of the criminal history information described" in the bill, such as convictions that have been "sealed, reversed, vacated, pardoned, dismissed or expunged, or an arrest or charge that did not lead to a conviction . . . Therefore, the evidence would already be irrelevant and inadmissible."

Finally, opponents contend that this bill is "overbroad," because it would not just apply to negligent hiring claims, and they believe that it is also "one-sided" in that it only makes evidence inadmissible when offered against the employer. "Therefore, the employer could use the conviction history information of the plaintiff to impeach his or her credibility or for some other relevant reason." The opponents conclude that "AB 1008 has been in law for only five months, and we should encourage employers to follow the guidance provided in that bill, rather than pursuing measures that endorse misplaced and unfounded stigmas and fears associated with hiring individuals with records."

Prior Related Legislation: AB 1650 (Jones-Sawyer, Chapter 880, Statutes of 2014) required construction contractors bidding for state contracts to certify that they will not ask applicants for onsite construction-related employment to disclose information concerning his or her conviction history on or at the time of an initial employment application, with specified exceptions.

AB 218 (Dickinson, Chapter 699, Statutes of 2013) prohibited a state or local agency from asking an applicant to disclose information regarding a criminal conviction, except as specified, until the agency has determined the applicant meets the minimum employment qualifications for the position.

AB 870 (Jones-Sawyer, 2013) would have prohibited the state from contracting with a person or entity that asks an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant, including an inquiry about conviction history on an employment application, until the employer has determined that the applicant meets the minimum employment qualifications, subject to specified exceptions. AB 870 died on the Appropriations suspense file.

SB 530 (Wright, Chapter 721, Statutes of 2013) provided that a potential employer may not ask for, seek, or utilize as a factor in determining any condition of employment, information about a conviction that has been judicially dismissed or ordered sealed.

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles Area Chamber of Commerce (sponsor)

Checkr

Lakeside Financial Services

Root & Rebound

Tender Greens

Opposition

ACLU of California/ Center for Advocacy and Policy

All of Us or None/ Todos o Nadie

California Employment Lawyers Association

Consumer Attorneys of California

Legal Services for Prisoners with Children

National Employment Law Project

Time for Change Foundation

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334