AB 2715: Employers: prohibited disclosure of information: arrest or detention.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2018-04-02
Existing law prohibits an employer from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or posttrial diversion program, except as specified. Existing law also prohibits an employer, as specified, from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, except in specified circumstances. Applicants for employment as a peace officer, or with the Department of Justice, Justice or with other criminal justice agencies, or persons already employed as a peace officer, among others, are an exception to these prohibitions, so that information about applicants for these positions or employees may be disclosed or sought. Existing law makes it a crime to intentionally violate these provisions.
This bill would additionally include modify the above-described exception to apply to persons seeking employment or already employed as nonsworn members of by the Department of Justice or a criminal justice agency as an exception to these prohibitions, so that information about these employees may be disclosed or sought. whose specific duties directly relate to the collection or analysis of evidence or property, directly relate to the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders, or directly relate to the collection, storage, dissemination, or usage of criminal offender record information. Because this bill would modify the scope of a crime, it would impose a state-mandated local program.
Existing law authorizes a criminal justice agency to release criminal history information under certain circumstances, including the release of information concerning an arrest or detention of a peace officer, or applicant for a position as a peace officer, which did not result in conviction or information concerning a referral to and participation in any postarrest diversion program or deferred entry of judgment program to a government agency employer of that peace officer or applicant.
This bill would also authorize a criminal justice agency to release that information concerning a nonsworn an employee of a criminal justice agency, or an applicant for a nonsworn position within a criminal justice agency, to a government agency employer of that nonsworn employee or applicant. applicant, if the specific duties of that employee or position directly relate to the collection or analysis of evidence or property, directly relate to the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders, or directly relate to the collection, storage, dissemination, or usage of criminal offender record information.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law prohibits an employer from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or posttrial diversion program, except as specified. Existing law also prohibits an employer, as specified, from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, except in specified circumstances. Applicants for employment as a peace officer, or with the Department of Justice, or with other criminal justice agencies, or persons already employed as a peace officer, are an exception to these prohibitions, so that information about applicants for these positions or employees may be disclosed or sought. Existing law makes it a crime to intentionally violate these provisions.
This bill would additionally include persons already employed as nonsworn members of a criminal justice agency as an exception to these prohibitions, so that information about these employees may be disclosed or sought.
Existing law authorizes a criminal justice agency to release criminal history information under certain circumstances, including the release of information concerning an arrest or detention of a peace officer, or applicant for a position as a peace officer, which did not result in conviction or information concerning a referral to and participation in any postarrest diversion program or deferred entry of judgment program to a government agency employer of that peace officer or applicant.
This bill would also authorize a criminal justice agency to release that information concerning a nonsworn employee of a criminal justice agency, or an applicant for a nonsworn position within a criminal justice agency, to a government agency employer of that nonsworn employee or applicant.
(a)(1)No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.
(2)No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law.
(3)For purposes of this section, conviction does not include, and shall not be construed to include, any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.
(b)Nothing in this section shall prohibit the disclosure of the information authorized for release under Sections 13203 and 13300 of the Penal Code, to a government agency employing a peace officer. However, the employer shall not determine any condition of employment other than paid administrative leave based solely on an arrest report. The information contained in an arrest report may be used as the starting point for an independent, internal investigation of a peace officer in accordance with Chapter 9.7 (commencing with Section 3300) of Division 4 of Title 1 of the Government Code.
(c)In any case where a person violates this section, or Article 6 (commencing with Section 11140) of Chapter 1 of Title 1 of Part 4 of the Penal Code, the applicant may bring an action to recover from that person actual damages or two hundred dollars ($200), whichever is greater, plus costs, and reasonable attorneys fees. An intentional violation of this section shall entitle the applicant to treble actual damages, or five hundred dollars ($500), whichever is greater, plus costs, and reasonable attorneys fees. An intentional violation of this section is a misdemeanor punishable by a fine not to exceed five hundred dollars ($500).
(d)The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law.
(e)Persons seeking employment or persons already employed as peace officers, persons already employed as nonsworn members of a criminal justice agency as defined in Section 13101 of the Penal Code, or persons seeking employment for positions in the Department of Justice or other criminal justice agencies as defined in Section 13101 of the Penal Code are not covered by this section.(e)The following persons are not covered by this section:
(1)Persons seeking employment or already employed as peace officers.
(2)Persons seeking employment by, or already employed by, the Department of Justice or other criminal justice agencies as defined in Section 13101 of the Penal Code, but only for those positions where the specific duties directly relate to the collection or analysis of evidence or property or directly relate to the activities described in subdivision (a) or (b) of Section 13101 of the Penal Code.
(f)(1)Except as provided in paragraph (2), nothing in this section shall prohibit an employer at a health facility, as defined in Section 1250 of the Health and Safety Code, from asking an applicant for employment either of the following:
(A)With regard to an applicant for a position with regular access to patients, to disclose an arrest under any section specified in Section 290 of the Penal Code.
(B)With regard to an applicant for a position with access to drugs and medication, to disclose an arrest under any section specified in Section 11590 of the Health and Safety Code.
(2)(A)An employer specified in paragraph (1) shall not inquire into information concerning or related to an applicants arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law, unless the information concerns an adjudication by the juvenile court in which the applicant has been found by the court to have committed a felony or misdemeanor offense specified in paragraph (1) that occurred within five years preceding the application for employment.
(B)Notwithstanding any other provision of this subdivision, an employer specified in paragraph (1) shall not inquire into information concerning or related to an applicants juvenile offense history that has been sealed by the juvenile court.
(3)An employer seeking disclosure of offense history under paragraph (2) shall provide the applicant with a list describing the specific offenses under Section 11590 of the Health and Safety Code or Section 290 of the Penal Code for which disclosure is sought.
(g)(1)No peace officer or employee of a law enforcement agency with access to criminal or juvenile offender record information maintained by a local law enforcement criminal or juvenile justice agency shall knowingly disclose, with intent to affect a persons employment, any information contained therein pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information.
(2)No other person authorized by law to receive criminal or juvenile offender record information maintained by a local law enforcement criminal or juvenile justice agency shall knowingly disclose any information received therefrom pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information.
(3)No person, except those specifically referred to in Section 1070 of the Evidence Code, who is not authorized by law to receive or possess criminal or juvenile justice records information maintained by a local law enforcement criminal or juvenile justice agency, pertaining to an arrest or other proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, shall knowingly receive or possess that information.
(h)A person authorized by law to receive that information, for purposes of this section, means any person or public agency authorized by a court, statute, or decisional law to receive information contained in criminal or juvenile offender records maintained by a local law enforcement criminal or juvenile justice agency, and includes, but is not limited to, those persons set forth in Section 11105 of the Penal Code, and any person employed by a law enforcement criminal or juvenile justice agency who is required by that employment to receive, analyze, or process criminal or juvenile offender record information.
(i)Nothing in this section shall require the Department of Justice to remove entries relating to an arrest or detention not resulting in conviction from summary criminal history records forwarded to an employer pursuant to law.
(j)As used in this section, pretrial or posttrial diversion program means any program under Chapter 2.5 (commencing with Section 1000) or Chapter 2.7 (commencing with Section 1001) of Title 6 of Part 2 of the Penal Code, Section 13201 or 13352.5 of the Vehicle Code, Sections 626, 626.5, 654, or 725 of, or Article 20.5 (commencing with Section 790) of Chapter 2 of Part 1 of Division 2 of, the Welfare and Institutions Code, or any other program expressly authorized and described by statute as a diversion program.
(k)(1)Subdivision (a) shall not apply to any city, city and county, county, or district, or any officer or official thereof, in screening a prospective concessionaire, or the affiliates and associates of a prospective concessionaire for purposes of consenting to, or approving of, the prospective concessionaires application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest.
(2)For purposes of this subdivision the following terms have the following meanings:
(A)Screening means a written request for criminal or juvenile history information made to a local law enforcement agency.
(B)Prospective concessionaire means any individual, general or limited partnership, corporation, trust, association, or other entity that is applying for, or seeking to obtain, a public agencys consent to, or approval of, the acquisition by that individual or entity of any beneficial ownership interest in any public agencys concession, lease, or other property right whether directly or indirectly held. However, prospective concessionaire does not include any of the following:
(i)A lender acquiring an interest solely as security for a bona fide loan made in the ordinary course of the lenders business and not made for the purpose of acquisition.
(ii)A lender upon foreclosure or assignment in lieu of foreclosure of the lenders security.
(C)Affiliate means any individual or entity that controls, or is controlled by, the prospective concessionaire, or who is under common control with the prospective concessionaire.
(D)Associate means any individual or entity that shares a common business purpose with the prospective concessionaire with respect to the beneficial ownership interest that is subject to the consent or approval of the city, county, city and county, or district.
(E)Control means the possession, direct or indirect, of the power to direct, or cause the direction of, the management or policies of the controlled individual or entity.
(l)(1)Nothing in subdivision (a) shall prohibit a public agency, or any officer or official thereof, from denying consent to, or approval of, a prospective concessionaires application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest based on the criminal history information of the prospective concessionaire or the affiliates or associates of the prospective concessionaire that show any criminal conviction for offenses involving moral turpitude. Criminal history information for purposes of this subdivision includes any criminal history information obtained pursuant to Section 11105 or 13300 of the Penal Code.
(2)In considering criminal history information, a public agency shall consider the crime for which the prospective concessionaire or the affiliates or associates of the prospective concessionaire was convicted only if that crime relates to the specific business that is proposed to be conducted by the prospective concessionaire.
(3)Any prospective concessionaire whose application for consent or approval to acquire a beneficial interest in a concession, lease, or other property interest is denied based on criminal history information shall be provided a written statement of the reason for the denial.
(4)(A)If the prospective concessionaire submits a written request to the public agency within 10 days of the date of the notice of denial, the public agency shall review its decision with regard to any corrected record or other evidence presented by the prospective concessionaire as to the accuracy or incompleteness of the criminal history information utilized by the public agency in making its original decision.
(B)The prospective concessionaire shall submit the copy or the corrected record of any other evidence to the public agency within 90 days of a request for review. The public agency shall render its decision within 20 days of the submission of evidence by the prospective concessionaire.
(m)Paragraph (1) of subdivision (a) does not prohibit an employer from asking an applicant about a criminal conviction of, seeking from any source information regarding a criminal conviction of, utilizing as a factor in determining any condition of employment of, or entry into a pretrial diversion or similar program by, the applicant if, pursuant to Section 1829 of Title 12 of the United States Code or any other state or federal law, any of the following apply:
(1)The employer is required by law to obtain information regarding a conviction of an applicant.
(2)The applicant would be required to possess or use a firearm in the course of his or her employment.
(3)An individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
(4)The employer is prohibited by law from hiring an applicant who has been convicted of a crime.
SEC. 2.Section 13203 of the Penal Code is amended to read:13203.(a)Any criminal justice agency may release, within five years of the arrest, information concerning an arrest or detention of a peace officer or applicant for a position as a peace officer, as defined in Section 830, a nonsworn employee of a criminal justice agency, or an applicant for a nonsworn position within a criminal justice agency, any of the following persons, which did not result in conviction, and for which the person did not complete a postarrest diversion program, to a government agency employer of that peace officer, nonsworn employee, or applicant. person:
(1)A peace officer or applicant for a position as a peace officer, as defined in Section 830.
(2)An employee of, or applicant for a position within, a criminal justice agency if the specific duties of the employee or position directly relate to the collection or analysis of evidence or property or directly relate to the activities described in subdivision (a) or (b) of Section 13101.
(b)Any criminal justice agency may release information concerning an arrest of a peace officer or applicant for a position as a peace officer, as defined in Section 830, a nonsworn employee of a criminal justice agency, or an applicant for a nonsworn position within a criminal justice agency, any of the following persons, which did not result in conviction but for which the person completed a postarrest diversion program or a deferred entry of judgment program, or information concerning a referral to and participation in any postarrest diversion program or a deferred entry of judgment program to a government agency employer of that peace officer, nonsworn employee, or applicant. person:
(1)A peace officer or applicant for a position as a peace officer, as defined in Section 830.
(2)An employee of, or applicant for a position within, a criminal justice agency if the specific duties of the employee or position directly relate to the collection or analysis of evidence or property or directly relate to the activities described in subdivision (a) or (b) of Section 13101.
(c)Notwithstanding subdivision (a) or (b), a criminal justice agency shall not release information under the following circumstances:
(1)Information concerning an arrest for which diversion or deferred entry of judgment has been ordered without attempting to determine whether diversion or a deferred entry of judgment program has been successfully completed.
(2)Information concerning an arrest or detention followed by a dismissal or release without attempting to determine whether the individual was exonerated.
(3)Information concerning an arrest without a disposition without attempting to determine whether diversion or a deferred entry of judgment program has been successfully completed or the individual was exonerated.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)(1)No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.
(2)No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law.
(3)For purposes of this section, conviction does not include, and shall not be construed to include, any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.
(b)Nothing in this section shall prohibit the disclosure of the information authorized for release under Sections 13203 and 13300 of the Penal Code, to a government agency employing a peace officer. However, the employer shall not determine any condition of employment other than paid administrative leave based solely on an arrest report. The information contained in an arrest report may be used as the starting point for an independent, internal investigation of a peace officer in accordance with Chapter 9.7 (commencing with Section 3300) of Division 4 of Title 1 of the Government Code.
(c)In any case where a person violates this section, or Article 6 (commencing with Section 11140) of Chapter 1 of Title 1 of Part 4 of the Penal Code, the applicant may bring an action to recover from that person actual damages or two hundred dollars ($200), whichever is greater, plus costs, and reasonable attorneys fees. An intentional violation of this section shall entitle the applicant to treble actual damages, or five hundred dollars ($500), whichever is greater, plus costs, and reasonable attorneys fees. An intentional violation of this section is a misdemeanor punishable by a fine not to exceed five hundred dollars ($500).
(d)The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law.
(e)Persons seeking employment or persons already employed as peace officers officers, persons already employed as nonsworn members of a criminal justice agency as defined in Section 13101 of the Penal Code, or persons seeking employment for positions in the Department of Justice or other criminal justice agencies as defined in Section 13101 of the Penal Code are not covered by this section.
(f)(1)Except as provided in paragraph (2), nothing in this section shall prohibit an employer at a health facility, as defined in Section 1250 of the Health and Safety Code, from asking an applicant for employment either of the following:
(A)With regard to an applicant for a position with regular access to patients, to disclose an arrest under any section specified in Section 290 of the Penal Code.
(B)With regard to an applicant for a position with access to drugs and medication, to disclose an arrest under any section specified in Section 11590 of the Health and Safety Code.
(2)(A)An employer specified in paragraph (1) shall not inquire into information concerning or related to an applicants arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law, unless the information concerns an adjudication by the juvenile court in which the applicant has been found by the court to have committed a felony or misdemeanor offense specified in paragraph (1) that occurred within five years preceding the application for employment.
(B)Notwithstanding any other provision of this subdivision, an employer specified in paragraph (1) shall not inquire into information concerning or related to an applicants juvenile offense history that has been sealed by the juvenile court.
(3)An employer seeking disclosure of offense history under paragraph (2) shall provide the applicant with a list describing the specific offenses under Section 11590 of the Health and Safety Code or Section 290 of the Penal Code for which disclosure is sought.
(g)(1)No peace officer or employee of a law enforcement agency with access to criminal or juvenile offender record information maintained by a local law enforcement criminal or juvenile justice agency shall knowingly disclose, with intent to affect a persons employment, any information contained therein pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information.
(2)No other person authorized by law to receive criminal or juvenile offender record information maintained by a local law enforcement criminal or juvenile justice agency shall knowingly disclose any information received therefrom pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information.
(3)No person, except those specifically referred to in Section 1070 of the Evidence Code, who is not authorized by law to receive or possess criminal or juvenile justice records information maintained by a local law enforcement criminal or juvenile justice agency, pertaining to an arrest or other proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, shall knowingly receive or possess that information.
(h)A person authorized by law to receive that information, for purposes of this section, means any person or public agency authorized by a court, statute, or decisional law to receive information contained in criminal or juvenile offender records maintained by a local law enforcement criminal or juvenile justice agency, and includes, but is not limited to, those persons set forth in Section 11105 of the Penal Code, and any person employed by a law enforcement criminal or juvenile justice agency who is required by that employment to receive, analyze, or process criminal or juvenile offender record information.
(i)Nothing in this section shall require the Department of Justice to remove entries relating to an arrest or detention not resulting in conviction from summary criminal history records forwarded to an employer pursuant to law.
(j)As used in this section, pretrial or posttrial diversion program means any program under Chapter 2.5 (commencing with Section 1000) or Chapter 2.7 (commencing with Section 1001) of Title 6 of Part 2 of the Penal Code, Section 13201 or 13352.5 of the Vehicle Code, Sections 626, 626.5, 654, or 725 of, or Article 20.5 (commencing with Section 790) of Chapter 2 of Part 1 of Division 2 of, the Welfare and Institutions Code, or any other program expressly authorized and described by statute as a diversion program.
(k)(1)Subdivision (a) shall not apply to any city, city and county, county, or district, or any officer or official thereof, in screening a prospective concessionaire, or the affiliates and associates of a prospective concessionaire for purposes of consenting to, or approving of, the prospective concessionaires application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest.
(2)For purposes of this subdivision the following terms have the following meanings:
(A)Screening means a written request for criminal or juvenile history information made to a local law enforcement agency.
(B)Prospective concessionaire means any individual, general or limited partnership, corporation, trust, association, or other entity that is applying for, or seeking to obtain, a public agencys consent to, or approval of, the acquisition by that individual or entity of any beneficial ownership interest in any public agencys concession, lease, or other property right whether directly or indirectly held. However, prospective concessionaire does not include any of the following:
(i)A lender acquiring an interest solely as security for a bona fide loan made in the ordinary course of the lenders business and not made for the purpose of acquisition.
(ii)A lender upon foreclosure or assignment in lieu of foreclosure of the lenders security.
(C)Affiliate means any individual or entity that controls, or is controlled by, the prospective concessionaire, or who is under common control with the prospective concessionaire.
(D)Associate means any individual or entity that shares a common business purpose with the prospective concessionaire with respect to the beneficial ownership interest that is subject to the consent or approval of the city, county, city and county, or district.
(E)Control means the possession, direct or indirect, of the power to direct, or cause the direction of, the management or policies of the controlled individual or entity.
(l)(1)Nothing in subdivision (a) shall prohibit a public agency, or any officer or official thereof, from denying consent to, or approval of, a prospective concessionaires application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest based on the criminal history information of the prospective concessionaire or the affiliates or associates of the prospective concessionaire that show any criminal conviction for offenses involving moral turpitude. Criminal history information for purposes of this subdivision includes any criminal history information obtained pursuant to Section 11105 or 13300 of the Penal Code.
(2)In considering criminal history information, a public agency shall consider the crime for which the prospective concessionaire or the affiliates or associates of the prospective concessionaire was convicted only if that crime relates to the specific business that is proposed to be conducted by the prospective concessionaire.
(3)Any prospective concessionaire whose application for consent or approval to acquire a beneficial interest in a concession, lease, or other property interest is denied based on criminal history information shall be provided a written statement of the reason for the denial.
(4)(A)If the prospective concessionaire submits a written request to the public agency within 10 days of the date of the notice of denial, the public agency shall review its decision with regard to any corrected record or other evidence presented by the prospective concessionaire as to the accuracy or incompleteness of the criminal history information utilized by the public agency in making its original decision.
(B)The prospective concessionaire shall submit the copy or the corrected record of any other evidence to the public agency within 90 days of a request for review. The public agency shall render its decision within 20 days of the submission of evidence by the prospective concessionaire.
(m)Paragraph (1) of subdivision (a) does not prohibit an employer from asking an applicant about a criminal conviction of, seeking from any source information regarding a criminal conviction of, utilizing as a factor in determining any condition of employment of, or entry into a pretrial diversion or similar program by, the applicant if, pursuant to Section 1829 of Title 12 of the United States Code or any other state or federal law, any of the following apply:
(1)The employer is required by law to obtain information regarding a conviction of an applicant.
(2)The applicant would be required to possess or use a firearm in the course of his or her employment.
(3)An individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
(4)The employer is prohibited by law from hiring an applicant who has been convicted of a crime.
SEC. 2.Section 13203 of the Penal Code is amended to read:13203.(a)Any criminal justice agency may release, within five years of the arrest, information concerning an arrest or detention of a peace officer or applicant for a position as a peace officer, as defined in Section 830, a nonsworn employee of a criminal justice agency, or an applicant for a nonsworn position within a criminal justice agency, which did not result in conviction, and for which the person did not complete a postarrest diversion program, to a government agency employer of that peace officer officer, nonsworn employee, or applicant.
(b)Any criminal justice agency may release information concerning an arrest of a peace officer or applicant for a position as a peace officer, as defined in Section 830, a nonsworn employee of a criminal justice agency, or an applicant for a nonsworn position within a criminal justice agency, which did not result in conviction but for which the person completed a postarrest diversion program or a deferred entry of judgment program, or information concerning a referral to and participation in any postarrest diversion program or a deferred entry of judgment program to a government agency employer of that peace officer officer, nonsworn employee, or applicant.
(c)Notwithstanding subdivision (a) or (b), a criminal justice agency shall not release information under the following circumstances:
(1)Information concerning an arrest for which diversion or deferred entry of judgment has been ordered without attempting to determine whether diversion or a deferred entry of judgment program has been successfully completed.
(2)Information concerning an arrest or detention followed by a dismissal or release without attempting to determine whether the individual was exonerated.
(3)Information concerning an arrest without a disposition without attempting to determine whether diversion or a deferred entry of judgment program has been successfully completed or the individual was exonerated.
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Date
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Status
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| Apr 17, 2018 | In committee: Set, second hearing. Hearing canceled at the request of author. |
| Apr 3, 2018 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Apr 3, 2018 | Re-referred to Com. on PUB. S. |
| Apr 2, 2018 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 8, 2018 | Referred to Com. on PUB. S. |
| Feb 16, 2018 | From printer. May be heard in committee March 18. |
| Feb 15, 2018 | Read first time. To print. |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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Organization
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Position
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Date
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|---|---|---|
| California Public Defenders Association | ** Support | Apr 2, 2018 |
| California State Association Of Counties | ** Support | Apr 2, 2018 |
| California State Sheriffs' Association | ** Support | Apr 2, 2018 |
| Chief Probation Officers | ** Support | Apr 2, 2018 |
| LIUNA Local 792 | ** Against | Apr 2, 2018 |
| Peace Officers Research Association Of California | ** Support | Apr 2, 2018 |
| SEIU California | ** Against | Apr 2, 2018 |
Date of Hearing:
Counsel: Matthew Fleming
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 2715
Author:(Limón) – As Amended Ver: April 2, 2018
SUMMARY:
Expands the amount of personal information that is available to criminal justice agencies when they evaluate continuing employees who are engaged in the handling of sensitive information, and simultaneously reduces the amount of personal information available to those agencies when evaluating potential employees who are not in those sensitive roles. Specifically, this bill:
- Allows a criminal justice agency to inquire about, request, and utilize information concerning an arrest or detention that did not result in a conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been dismissed or ordered sealed for persons who are employed in criminal justice agencies, as defined by law, provided that the person’s specific duties directly relate to:
- The apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders;
- The collection, storage, dissemination, or usage of criminal offender record information; or,
- The collection or analysis of evidence or property.
- The apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders;
- Allows a criminal justice agency to release information concerning an arrest or detention that did not result in a conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been dismissed or ordered sealed for persons who are employed in criminal justice agencies, as defined by law, provided that the person’s specific duties directly relate to:
- The apprehension, prosecution adjudication, incarceration, or correction of criminal offenders;
- The collection, storage, dissemination or usage of criminal offender record information; or,
- The collection or analysis of evidence or property.
- The apprehension, prosecution adjudication, incarceration, or correction of criminal offenders;
- Prohibits criminal justice agencies from inquiring about, requesting, and utilizing information concerning an arrest or detention that did not result in a conviction or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law for persons who are seeking employment or employed in criminal justice agencies and whose duties do not directly relate to apprehension, prosecution, incarceration, or correction of criminal offenders, or the collection, storage, dissemination or usage of criminal offender record information, or the collection or analysis of evidence or property.
EXISTING LAW:
- Precludes an employers from asking applicants to disclose information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been dismissed or ordered sealed, and precludes any employer from seeking or utilizing such information as a factor in determining any condition of employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law; but allows employers to ask an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial. (Lab. Code § 432.7 subd. (a)(1).)
- Precludes employers from asking an applicant for employment to disclose information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court, and precludes an employer from seeking or utilizing, as a factor in determining any condition of employment, any record concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law. (Lab. Code § 432.7 subd. (a)(2).)
- Exempts persons seeking employment or persons already employed as peace officers and persons seeking employment for positions in the Department of Justice or other criminal justice agencies, from the provisions precluding employers from asking an applicant for employment to disclose information concerning an arrest or detention that did not result in conviction, etc. (Lab. Code § 432.7 subd. (e).)
- Defines “criminal justice agencies” as those agencies at all levels of government which perform as their principal functions, activities which either:
- Relate to the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders; or
- Relate to the collection, storage, dissemination or usage of criminal offender record information. (Pen. Code § 13101.)
- Relate to the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders; or
- Allows any criminal justice agency to release, within five years of the arrest, information concerning an arrest or detention of a peace officer or applicant for a position as a peace officer, which did not result in conviction, and for which the person did not complete a postarrest diversion program, to a government agency employer of that peace officer or applicant. (Pen. Code § 13203 subd. (a).)
- Allows any criminal justice agency to release information concerning an arrest of a peace officer or applicant for a position as a peace officer, which did not result in conviction but for which the person completed a postarrest diversion program or a deferred entry of judgment program, or information concerning a referral to and participation in any postarrest diversion program or a deferred entry of judgment program to a government agency employer of that peace officer or applicant. (Pen. Code § 13203 subd. (b).)
- Prevents a criminal justice agency from releasing information under the following circumstances:
- Information concerning an arrest for which diversion or deferred entry of judgment has been ordered without attempting to determine whether diversion or a deferred entry of judgment program has been successfully completed;
- Information concerning an arrest or detention followed by a dismissal or release without attempting to determine whether the individual was exonerated; and,
- Information concerning an arrest without a disposition without attempting to determine whether diversion or a deferred entry of judgment program has been successfully completed or the individual was exonerated. (Pen. Code § 13203 subd. (c).)
- Information concerning an arrest for which diversion or deferred entry of judgment has been ordered without attempting to determine whether diversion or a deferred entry of judgment program has been successfully completed;
- Prevents a government agency employing a peace officer from determining any condition of employment other than paid administrative leave based solely on an arrest report, but allows the information contained in an arrest report to be used as the starting point for an independent, internal investigation of a peace officer in accordance with the law. (Lab. Code § 432.7 subd. (b).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “Non-sworn employees have sensitive and important roles, including forensic technicians, crime analysts, correctional staff, and victim service providers. These positions are critical to the health and integrity of our criminal justice system.
“In the spirit of fostering transparency, ensuring that employees remain of the highest integrity, and maintaining community trust in the ethics of the public servants who work to protect our neighborhoods, it is appropriate to make arrest information available to criminal justice employers.”
- Background on Arrest Information: As a general matter, state law precludes employers from looking too closely at arrest information which resulted in something less than a conviction. Although arrests frequently show up in criminal history searches, if a specific arrest did not result in a conviction, an employer is prohibited from asking questions about that arrest, or seeking documentation about the arrest, such as police reports. They are also prohibited from using arrest information in hiring or promotion decisions.
One reason for this policy is probably that an arrest, in and of itself, does not mean that a person is guilty of a crime. The fact that a person was arrested only means that the arresting officer had “probable cause” to make the arrest. The question of what constitutes “probable cause” for an arrest is not an exact formula, must be decided on a case by case basis, and definitely requires less evidence than that which would be required to hold someone criminally liable for a crime. (See People v. Ingle (1960) 53 Cal.2d. 407, 412-13.) Furthermore, a police officer can arrest a person even if no crime occurred, so long the officer had probable cause to believe that the person committed a felony. (Pen. Code § 836 subd. (a)(3).) It is therefore entirely possible that an innocent person may have been arrested due to a mistake. For that reason, it makes sense to restrict an employer’s ability to obtain and utilize information about an arrest where there was no finding of guilt.
- Exemption for Peace Officers: Despite the general restriction on the use of arrest information, there is an exemption in the law for peace officers. Because peace officers are charged with upholding the law they are subjected to a higher level of scrutiny than the average person.
Just like an arrest does not necessarily mean a person is guilty of a crime, the absence of a conviction also does not necessarily mean they have done no wrong. A finding of guilt requires proof beyond reasonable doubt; this is a lofty standard and sometimes cases are dismissed or a defendant is found not guilty due to a lack of evidence, rather than a lack of wrongdoing. Current law allows an employer of peace officers to look into the details of an arrest, therefore gives the employer a better opportunity to evaluate the moral fitness of the applicant, and permits a better understanding of how the applicant may handle the tremendous responsibility that comes along with upholding and enforcing the laws of the State.
This bill would expand a criminal justice agency’s ability to obtain information about its employees who work in sensitive roles that fall short of being a peace officer. Under current law, a criminal justice agency is allowed to make inquiries and requests regarding its peace officers both at the time the peace officer is seeking employment and at any time throughout the officer’s tenure with the agency. When it comes to employees other than peace officers, however, the agency can only make inquires and requests regarding arrest information at the time the person is seeking employment. This bill would allow agencies to make requests and inquiries of a non-peace officer at any time during their employment, provided that the person is employed in a role in which his or her specific duties directly relate to 1) the apprehension, prosecution adjudication, incarceration, or correction of criminal offenders, 2) the collection, storage, dissemination or usage of criminal offender record information, or 3) the collection or analysis of evidence or property.
The author has specifically identified positions such as forensic technicians, crime analysts, and correctional staff as the kinds of employees who would be the subject of the criminal justice agencies’ expanded ability to look into arrest information. These positions have important duties that include handling and analyzing evidence. Furthermore, these positions have a significant likelihood of being called to testify in a criminal case. It therefore makes sense that the persons employed in these positions should be subjected to a heightened level of scrutiny.
At the same time this bill seeks to expand the accessibility of information pertaining to employees whose functions are of a sensitive nature, it also narrows the circumstances in which the agency can inquire or request information about its employees who are not engaged in those roles. Under current law, a criminal justice agency is allowed to obtain information regarding arrests for any potential employee. That is to say that even if an applicant’s only duties are to include answering phones or inputting data, current law allows the employer to investigate the circumstances of an arrest even if that arrest resulted in an acquittal or dismissal of charges. This bill would prevent the employer from obtaining arrest information from employees in non-sensitive roles even at the time they make the application for employment.
- Argument in Support: According to the bill’s sponsor, The California State Sheriffs’ Association: “An ethical and conscientious personnel is pivotal to safeguard the integrity of our criminal justice system no matter the rank or title. So that law enforcement agencies are appropriately held accountable, and can sustain a trustworthy relationship within their communities, they must have the necessary means to request and receive arrest records for specified non-sworn employees. This process ensures equity, transparency, and accountability.”
- Argument in Opposition: According to The Laborer’s International Union of North America: “AB 2715 seeks to allow criminal justice agency employers to consider arrests or detentions not resulting in convictions, when considering employment matters, for non-sworn employees, including those whose primary job functions are the handling, maintenance, or dissemination of information via computer; and accordingly, would not be in the employee classifications intended to be included under this measure.
“Accordingly, should the bill continue to move forward, we respectfully request the author amend the bill further, to clarify that ‘however, such employees shall not be interpreted to include those whose usual and primary functions are administrative, information technology, or clerical, in nature.’”
- Prior Legislation:
- AB 1008 (McCarty), Chapter 789, Statutes of 2017, requires employers to follow certain procedures prior to considering an applicant’s criminal history as part of the hiring process.
- AB 2343 (Torres), Chapter 256, Statutes of 2012, requires that when state or federal summary criminal history information is furnished to an agency, organization or individual, a copy of the information be provided to the person about whom the information relates if there is an adverse employment, licensing, or certification decision.
- AB 2727 (Bradford) of the 2009-2010 Legislative Session, would have restricted the situations in which an employer could deny an application for employment based on a prior criminal conviction. AB 2727 failed passage in the Assembly Appropriations Committee.
- AB 1008 (McCarty), Chapter 789, Statutes of 2017, requires employers to follow certain procedures prior to considering an applicant’s criminal history as part of the hiring process.
REGISTERED SUPPORT / OPPOSITION:
Support
California State Sheriffs’ Association (Sponsor)
California State Association of Counties
California Public Defenders Association
Chief Probation Officers
Peace Officers Research Association of California
Opposition
LIUNA Local 792
SEIU California
Analysis Prepared by:
Matthew Fleming / PUB. S. / (916) 319-3744
Bill Author
Bill Co-Author(s):
