SB 809

Bill Subjects

Abstract

Existing law, the Investigative Consumer Reporting Agencies Act, prohibits certain persons, including a person intending to use an investigative consumer report for employment purposes, from procuring or causing to be prepared the report unless certain conditions are met. Under that act, one of those conditions require the person procuring or causing the report to be made to provide a clear and conspicuous disclosure in writing to the consumer, at any time before the report is procured or caused to be made and in a document that consists solely of the disclosure, certain information. This bill would require that information to also include either all laws and regulations that impose restrictions or prohibitions for employment on the basis of a conviction, if any, or all the specific job duties of the position for which a conviction may have a direct and adverse relationship that has the potential to result in an adverse employment action, as described. Existing law, the California Fair Employment and Housing Act (FEHA) , prohibits an employer from engaging in various defined forms of discriminatory employment practices, including with respect to denial of applicants because of their criminal history (existing criminal history discrimination provisions) . Existing law provides it is an unlawful employment practice under FEHA for an employer with 5 or more employees to, among other things, include on any application for employment any question that seeks the disclosure of an applicant's conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions. Existing law requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant's conviction history to make an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job, and to consider certain topics when making that assessment, as described. This bill would enact the Fair Chance Act, which would revise, recast, and expand the above-described unlawful employment practices, individualized assessments, and associated remedies, as provided. The bill, among other things, would make it an unlawful employment practice to take adverse action against an employee or discriminate against an employee on the basis of their preemployment arrest or conviction history, except as provided, or to end an interview, reject an application, or otherwise terminate the employment, transfer, or promotion application process based on conviction history information provided by the applicant or learned from any other source, until after the employer, as defined, has made a conditional offer of employment, transfer, or promotion to the applicant. The bill would require an employer to post clear and conspicuous notice informing applicants and employees of certain information, including the act, as described. This bill would require an employer to retain specified records relating to an applicant's employment, transfer, or promotion applications and the individualized assessments and would require employers to provide or provide access to the records and documents to the Civil Rights Department in any administrative enforcement proceeding, as provided, or to the applicant. The bill would provide that any record or document retained or received by a local agency employer or the department is confidential and not subject to disclosure under the California Public Records Act, except as specified. By imposing additional prohibitions on local agencies, the bill would impose a state-mandated local program. This bill would set forth, among other remedies, a training requirement and civil penalties based on the recurrence of the violation and employer size. The bill would set forth procedures for imposing civil penalties and for complainants to make claims for those penalties with the department. The bill would establish the Fair Chance Act Enforcement Fund and make moneys in the fund available to the department upon appropriation for purposes of administering and enforcing the act. The bill would establish the Fair Chance Act Recovery Fund and would make moneys in the fund available to the department upon appropriation for purposes of paying claims made by complainants. This bill would require the department to issue rules and regulations regarding when an employer action constitutes a violation of the act for purposes of imposing civil penalties and for purposes of the additional remedies and penalties under the FEHA. The bill would also require the department to annually publish a report containing statistics regarding the total number of penalties issued pursuant to the act, as described. This bill would provide the existing criminal history discrimination provisions are operative only through December 31, 2023, but that violations of the existing criminal history discrimination provisions arising from actions prior to January 1, 2024, shall continue to be enforced pursuant to those provisions. The bill would make conforming changes and would make related findings and declarations. The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose. This bill would make legislative findings to that effect. Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. This bill would make legislative findings to that effect. 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.