Compliance Update – California Bills Alert SB-647 and SB-809
April 17th, 2023 | Chris Christian, Director of Compliance
Two bills have been introduced in the 2023 California legislative session that could significantly impact criminal background screening in the State. Senate Bill 809 seeks to overhaul the California Fair Chance Act, effectively prohibiting criminal background checks absent pre-existing legislative requirements. Senate Bill 647 seeks to make court record information including DOB accessible as part of the public record for use in background checks.
Senate Bill 809
Senate Bill 809 (SB-809) “Fair Chance Act of 2023” was introduced on February 17, 2023. If passed, SB-809 would severely restrict employers’ ability to run criminal checks on job candidates. Currently, employers are permitted to run criminal background checks as long as they follow the mandated individualized assessment process and follow state requirements. The bill would essentially make criminal checks illegal by making it an unlawful employment practice to take adverse action based on arrest or conviction history. It also would make it unlawful to end an interview, reject an application, or otherwise terminate the employment or promotion application process based on conviction history information provided by the applicant or learned from any other source.
SB-809 would authorize employers to conduct a conviction history background check only in specified circumstances such as when required by state or federal law. If employers are authorized to conduct background checks by law, the employer would still have to perform an individualized assessment of any criminal conviction records to determine whether the record has a direct and adverse relationship with one or more specific duties of the job.
SB-809 would also amend the California Investigative Consumer Reporting Agencies Act by requiring a candidate disclosure that includes either (1) 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; or (2) all laws and regulations that prohibit or restrict the hiring or employment on the basis of a conviction.
Senate Bill 647
On February 16, 2023 California Senate Bill 647 (SB-647) was introduced in the California legislature. SB-647 would authorize the clerk of the superior court to allow access to public record information that identifies criminal defendants to a person who certifies under penalty of perjury both of the following:
(1) The person is reviewing or obtaining the information for the preparation of a consumer report by a consumer reporting agency regulated by the federal Fair Credit Report Act (15 U.S.C. Sec. 1681 et seq.).
(2) The person who is the subject of the report has consented to the preparation of the consumer report.
SB-647 seeks to restore access to date of birth in public records in California. Last year, a similar bill, California Senate Bill 1262 (SB-1262) was introduced as a result of the California Court of Appeals decision in the case All of Us or None etc. v. Hamrick which led to the removal of date-of-birth information from various online court access portals and public-access terminals in the court houses. SB 1262 was passed by the legislature; however, it was vetoed by the Governor on September 29, 2022.
The new bill seeks to address the severe impact on background screening that has resulted from date of birth being removed from publicly available information, which has resulted in long delays and difficulties in determining that records belong to a specific person.
While the future of both of these bills is uncertain, Sterling will be monitoring the status of both SB-647 and SB-809. Employers are encouraged to also monitor these bills as they work their way through the California legislature. California based employers may want to consider contacting their applicable state representative regarding the impacts these bills would have on their screening programs.
The Information contained herein is for informational purposes only. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. This and other important legislative updates can be found on the Sterling website: https://www.sterlingcheck.com/resources/compliance-updates/
Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.