BILL NUMBER: SB 530 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 6, 2013
PASSED THE ASSEMBLY SEPTEMBER 4, 2013
AMENDED IN ASSEMBLY AUGUST 30, 2013
AMENDED IN ASSEMBLY JUNE 25, 2013
AMENDED IN ASSEMBLY JUNE 19, 2013
AMENDED IN SENATE MAY 28, 2013
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Wright
FEBRUARY 21, 2013
An act to amend Section 432.7 of the Labor Code, and to add
Section 4852.22 to the Penal Code, relating to criminal offenders.
LEGISLATIVE COUNSEL'S DIGEST
SB 530, Wright. Criminal offenders: rehabilitation.
Existing law prohibits an employer, whether a public agency or
private individual or corporation, from asking an applicant for
employment 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 makes it a crime
to intentionally violate these provisions.
This bill would additionally prohibit 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, as
provided, unless the employer is required by law to obtain that
information, the applicant would be required to possess or use a
firearm in the course of his or her employment, 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, or if the
employer is prohibited by law from hiring an applicant who has been
convicted of a crime. Because this bill would expand the definition
of a crime, it would impose a state-mandated local program.
Existing law authorizes an individual convicted of a felony or
convicted of a misdemeanor violation of a sex offense, as specified,
to file a petition for a certificate of rehabilitation and a pardon
provided that certain conditions have been satisfied. Existing law
authorizes, after the minimum period of rehabilitation has expired,
an individual, as specified, to file a petition for ascertainment and
declaration of rehabilitation. Existing law authorizes a court to
grant an order known as a certificate of rehabilitation and recommend
that the Governor grant a full pardon to certain individuals.
This bill would authorize a trial court hearing an application for
a certificate of rehabilitation before the applicable period of
rehabilitation has elapsed to grant the application if the court, in
its discretion, believes relief serves the interests of justice.
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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 432.7 of the Labor Code is amended to read:
432.7. (a) 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.
(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 attorney's 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 attorney's 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 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) 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:
(1) 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.
(2) 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.
(g) (1) No peace officer or employee of a law enforcement agency
with access to criminal offender record information maintained by a
local law enforcement criminal justice agency shall knowingly
disclose, with intent to affect a person's 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 offender
record information maintained by a local law enforcement criminal
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 knowing he or she is not authorized by
law to receive or possess criminal justice records information
maintained by a local law enforcement criminal 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
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 offender records maintained by a
local law enforcement criminal 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 justice
agency who is required by that employment to receive, analyze, or
process criminal 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, 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 concessionaire's 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 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 agency's
consent to, or approval of, the acquisition by that individual or
entity of any beneficial ownership interest in any public agency's
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 lender's business and
not made for the purpose of acquisition.
(ii) A lender upon foreclosure or assignment in lieu of
foreclosure of the lender's 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 concessionaire's
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) 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 4852.22 is added to the Penal Code, to read:
4852.22. Except in a case requiring registration pursuant to
Section 290, a trial court hearing an application for a certificate
of rehabilitation before the applicable period of rehabilitation has
elapsed may grant the application if the court, in its discretion,
believes relief serves the interests of justice.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B 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 XIII B of the California
Constitution.