Bill Text: CA SB1345 | 2023-2024 | Regular Session | Amended

California Senate Bill 1345

Bill Title: Employment discrimination: criminal history information.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-04-16 - Set for hearing April 24 in L., P.E. & R. pending receipt. [SB1345 Detail]

Download: California-2023-SB1345-Amended.html

Amended IN Senate March 20, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 1345

Introduced by Senator Smallwood-Cuevas

February 16, 2024

An act to add Section 12952.5 to the Government Code, relating to employment.

LEGISLATIVE COUNSEL'S DIGEST

SB 1345, as amended, Smallwood-Cuevas. Employment discrimination: criminal history information.

Existing law, the California Fair Employment and Housing Act, prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. Existing law makes it unlawful for an employer with five or more employees to, among other things, include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history, except as provided.

This bill would make it an unlawful employment practice for an employer to take an adverse action against an applicant based solely or in part on criminal history information, unless the employer can demonstrate that the applicant’s criminal history has a direct and adverse relationship with one or more specific duties of the job and the employer’s business necessity requires the adverse action. The bill would also make it an unlawful employment practice for an employer to require, as a condition of employment, that an applicant waive the applicant’s right to privacy in criminal history information or otherwise provide an authorization for the employer to obtain the applicant’s criminal history information under specified law, unless the employer can demonstrate a business necessity. The bill would require an employer to provide to an applicant a written notice when requesting an applicant’s authorization to obtain the applicant’s criminal history information, as specified. The bill would define various terms for these purposes.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

Section 12952.5 is added to the Government Code, to read:

12952.5.

(a) For purposes of this section, the following definitions apply:

(1) “Adverse action” means an employment action adverse to the interests of the applicant, including, but not limited to, withdrawal of a conditional offer of employment, denial of employment, termination, reduction in pay or benefits, loss of privileges, and transfer.

(2) “Applicant” means an individual applying for employment, considered for promotion, considered for transfer, considered for a change in job position, or otherwise evaluated for continued employment, including, but not limited to, all prospective, provisional, probationary, and current employees.

(3) “Business necessity” means the need of an employer to do either of the following:

(A) Comply with requirements or exclusions based on specific criminal conduct or a category of criminal offenses in any federal law, federal regulation, or state law.

(B) Protect against incidents of workplace harassment, workplace violence, or theft of business property when the employer has clear and convincing evidence that taking an adverse action based solely or in part on criminal history information is necessary to provide that protection and there is no reasonable alternative.

(4) “Criminal history information” means information regarding a prior arrest, charge, or conviction.

(5) “Employee” means an employee, unpaid intern or volunteer, independent contractor, or any other individual providing services pursuant to a contract.

(6) (A) “Employer” means either of the following:

(i) A person who employs five or more persons to perform services for a wage or salary.

(ii) The state and any political or civil subdivision of the state, including, but not limited to, cities and counties.

(B) “Employer” includes a direct or joint employer, an entity that evaluates the applicant’s criminal history information on behalf of an employer, a staffing agency, and an entity that selects, obtains, or is provided workers from a pool or availability list.

(b) It is an unlawful employment practice for an employer to take an adverse action against an applicant based solely or in part on criminal history information, unless the employer can demonstrate both of the following:

(1) The applicant’s criminal history has a direct and adverse relationship with one or more specific duties of the job.

(2) The employer’s business necessity requires the adverse action.

(c) It is an unlawful employment practice for an employer to require, as a condition of employment, that an applicant waive the applicant’s right to privacy in criminal history information or otherwise provide an authorization for the employer to obtain the applicant’s criminal history information under a state or federal consumer protection law, including, but not limited to, Section 1786.16 of the Civil Code or Section 1681b of Title 15 of the United States Code, unless the employer can demonstrate business necessity.

(d) When requesting an applicant’s authorization to obtain an applicant’s criminal history information, an employer shall provide to the applicant a written notice that does either of the following:
(1) If the employer asserts a business necessity, identifies all of the following:
(A) The employer’s specific business necessity.
(B) If the employer asserts a business necessity as defined in subparagraph (A) of paragraph (3) of subdivision (a), the specific federal law, federal regulation, or state law that contains the requirement or exclusion.
(C) If the employer asserts a business necessity as defined in subparagraph (B) of paragraph (3) of subdivision (a), both of the following:
(i) The specific risk of workplace harassment, workplace violence, or theft of business property inherent to the position sought by the applicant to be protected against through the employer’s use of the applicant’s criminal history information.
(ii) The employer’s evidence that the use of the applicant’s criminal history information is necessary to protect against the risk identified in clause (i) and that there is no reasonable alternative to the use of the applicant’s criminal history.
(2) If the employer does not assert a business necessity, clearly and conspicuously explains both of the following:
(A) The applicant has the right to refuse to authorize the employer’s access to the applicant’s criminal history information.
(B) The law prohibits the employer from taking an adverse action based on the applicant’s refusal.