§ 11105.3. — 11105.3. (Amended by Stats. 2023, Ch. 190, Sec. 10.)

California § 11105.3.

• Jurisdiction: California
• Code PEN: Penal Code - PEN
• Title: 1.
• Part 4.: TITLE 1. INVESTIGATION AND CONTROL OF CRIMES AND CRIMINALS
• Ch. 1.: CHAPTER 1. Investigation, Identification, and Information Responsibilities of the Department of Justice
• Art. 3.: ARTICLE 3. Criminal Identification and Statistics

Text

(a)
Notwithstanding any other law, a human resource agency or an employer may request from the Department of Justice records of all convictions or any arrest pending adjudication involving the offenses specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code of a person who applies for a license, employment, or volunteer position, in which they would have supervisory or disciplinary power over a minor or any person under their care. The department shall furnish the information to the requesting employer and shall also send a copy of the information to the applicant.
(b)
(1)
A request for records under
subdivision (a) shall include the applicant’s fingerprints, which may be taken by the requester, and any other data specified by the department. The department shall not require the applicant’s residence address for any request for records pursuant to subdivision (a). The request shall be on a form approved by the department, and the department may charge a fee to be paid by the employer, human resource agency, or applicant for the actual cost of processing the request. However, a fee shall not be charged to a nonprofit organization. Requests received by the department for federal level criminal offender record information shall be forwarded to the Federal Bureau of Investigation by the department to be searched for any record of arrests or convictions.
(2)
The following procedures are established under this section:
(A)
The department, upon receipt of a background check report lacking disposition data, shall conduct research in whatever recordkeeping systems are available in order to obtain complete data.
(B)
A human resource agency or employer shall register with the department before submitting a request for screening under this section. Each such request shall be voluntary. As a part of the registration, the human resource agency or employer shall agree to comply with state and federal law and shall so indicate by signing an agreement approved by the department. The department may periodically audit human resource agencies and employers to ensure compliance with federal law and this section.
(C)
The human resource agency or employer shall maintain a waiver signed annually by the applicant, employee, or volunteer allowing the release of the state and federal level criminal history information to the human resource agency or employer.
(D)
The federal level criminal history information is available to human resource agencies and employers to use only for the purpose of screening employees and volunteers or persons applying to be an employee or volunteer with a human resource agency or employer. The department shall provide this federal criminal history record information directly to the human resource agency or employer as authorized by the written waiver required pursuant to subparagraph (C) for submission of a request to the department.
(E)
The determination of whether the criminal history record shows that the applicant, employee, or volunteer has been convicted of, or is under pending indictment for, any crime that bears upon the fitness of the applicant, employee, or volunteer to have responsibility for the safety and well-being of children, the elderly, the handicapped, or the mentally impaired shall solely be made by the human resource agency or employer. This section does not require the department to make such a determination on behalf of any human resource agency or employer.
(F)
The human resource agency or employer shall notify the person in writing of their right to obtain a copy of any background screening report, including the criminal history records, if any, contained in the report, to challenge
the accuracy and completeness of any information contained in any such report, and to obtain a determination as to the validity of such challenge before a final determination regarding the person is made by the human resource agency or employer reviewing the criminal history information.
(c)
(1)
When a request pursuant to this section reveals that a prospective employee or volunteer has been convicted of a violation or attempted violation of Section 220, 261.5, 273a, 273d, or 273.5, former Section 262, or any sex offense listed in Section 290, except for the offense specified in subdivision (d) of Section 243.4, and where the agency or employer hires the prospective employee or volunteer, the agency or employer shall notify the parents or guardians of any minor who will be supervised or disciplined by the employee or volunteer. A conviction for a violation or attempted violation of an offense
committed outside the State of California shall be included in this notice if the offense would have been a crime specified in this subdivision if committed in California. The notice shall be given to the parents or guardians with whom the child resides, and shall be given at least 10 days prior to the day that the employee or volunteer begins their duties or tasks. Notwithstanding any other law, a person who conveys or receives information in good faith and in conformity with this section is exempt from prosecution under Section 11142 or 11143 for conveying or receiving that information. Notwithstanding subdivision (d), the notification requirements of this subdivision shall apply as an additional requirement of any other law requiring criminal record access or dissemination of criminal history information.
(2)
The notification requirement pursuant to paragraph (1) shall not apply to a misdemeanor conviction. This paragraph does not preclude
an employer from requesting records of misdemeanor convictions from the Department of Justice pursuant to this section.
(d)
This section does not supersede any law requiring criminal record access or dissemination of criminal history information. In any conflict with another statute, dissemination of criminal history information shall be pursuant to the mandatory statute. This subdivision applies to, but is not limited to, requirements pursuant to Article 1 (commencing with Section 1500) of Chapter 3 of, and Chapter 3.2 (commencing with Section 1569) and Chapter 3.4 (commencing with Section 1596.70) of, Division 2 of, and Section 1522 of, the Health and Safety Code, and Sections 8712, 8811, and 8908 of the Family Code, and Section 16519.5 of the Welfare and Institutions Code.
(e)
The department may adopt regulations to implement the provisions of this section as necessary.
(f)
As used in this section, the following terms have the following meanings:
(1)
“Community youth athletic program” means an employer having as its primary purpose the promotion or provision of athletic activities for youth under 18 years of age.
(2)
“Employer”
means any nonprofit corporation or other organization specified by the Attorney General that employs or uses the services of volunteers in positions in which the volunteer or employee has supervisory or disciplinary power over a child or children.
(3)
“Human resource agency” means a public or private entity, excluding any agency responsible for licensing of facilities pursuant to the California Community Care Facilities Act (Chapter 3 (commencing with Section 1500)), the California
Residential Care Facilities for the Elderly Act (Chapter 3.2 (commencing with Section 1569)), Chapter 3.01 (commencing with Section 1568.01), and the California Child Day Care Facilities Act (Chapter 3.4 (commencing with Section 1596.70)) of Division 2 of the Health and Safety Code, responsible for determining the character and fitness of a person who is:
(A)
Applying for a license, employment, or as a volunteer within the human services field that involves the care and security of children, the elderly, the handicapped, or the mentally impaired.
(B)
Applying to be a volunteer who transports individuals impaired by drugs or alcohol.
(C)
Applying to adopt a child or to be a foster parent.
(4)
“Regular volunteer” has the same meaning as that term is defined in Section 18975 of the Business and Professions Code.
(5)
“Youth organization” means any community youth athletic program or youth service organization.
(6)
“Youth service organization” has the same meaning as that term is defined in Section 18975 of the Business and Professions Code.
(g)
Except as provided in subdivision (c), criminal history information obtained pursuant to this section is confidential and a recipient shall not disclose its contents other than for
the purpose for which it was acquired.
(h)
(1)
A community youth athletic program may request state and federal level criminal history information pursuant to subdivision (a) for a volunteer coach or hired coach candidate. The director of the community youth athletic program shall be the custodian of records.
(2)
The community youth athletic program may request from the Department of Justice subsequent arrest notification service, as provided in Section 11105.2, for a volunteer coach or a hired coach candidate.
(i)
(1)
A youth service organization shall request state and federal level criminal history information pursuant to subdivision (a) for an administrator, employee, or regular
volunteer candidate.
(2)
The youth service organization may request from the Department of Justice subsequent arrest notification service, as provided in Section 11105.2, for an administrator, employee, or regular volunteer.
(j)
(1)
When a youth organization that requests subsequent arrest notification service pursuant to subdivision (h) or (i) knows that the individual for whom the service is requested is no longer in a position for which the service is permitted, the youth organization shall notify the department immediately to terminate the service for that individual. The department shall terminate the service for the individual upon receipt of the notification.
(2)
A youth organization that requests subsequent arrest notification service shall, not less than every six months, verify that
each individual for whom the service has not been terminated, is still in a position with the youth organization for which the service is permitted.
(3)
If a youth organization receives subsequent arrest notification for an individual unknown to the youth organization or for whom the youth organization terminated the service, the youth organization shall return the notification immediately to the department, informing the department that the individual is unknown to the youth organization or that the youth organization terminated the service for that individual.
(k)
Compliance with
this section does not remove or limit the liability of a mandated reporter pursuant to Section 11166.

Legislative History

Amended by Stats. 2023, Ch. 190, Sec. 10. (SB 135) Effective September 13, 2023.