Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Effective January 1, 2017, drivers participating with a Transportation Network Company (TNC) in California will be subject to mandatory criminal background checks, regardless of whether a driver is considered an employee or an independent contractor. California Governor Jerry Brown approved Assembly Bill 1289 on September 28, 2016. The new law adds Section 5445.2 to the Public Utilities Code, which regulates TNCs.
TNCs include organizations and corporations that provide prearranged transportation services for compensation using an online-enabled platform to connect passengers with drivers using their personal vehicles. Under the new law, TNCs will be required to conduct a local and national criminal background check for every potential driver, which must include:
- A multi-state and multi-jurisdiction criminal records locator or other similar commercial nationwide database with validation; and
- A search of the United States Department of Justice (USDOJ) National Sex Offender Public Web site.
In addition, the new law prohibits TNCs from employing, retaining or contracting with any individual who:
- Is registered on the USDOJ National Sex Offender Public Website;
- Has been convicted of a terrorism-related felony or other violent felonies specified in the new law; or
- Has been convicted within the past seven years of misdemeanor assault or battery, a domestic violence offense, driving under the influence of alcohol or drugs, or other felonies specified in the new law.
Moreover, California’s Investigative Consumer Reporting Agencies Act (ICRAA) bars third-party background screening companies from reporting, among other things, records of an arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedates the report by more than seven years. AB 1289 also amends the ICRAA to state that its seven-year bar on the reporting of criminal records does not apply to a background check furnished to a TNC as required by the Public Utilities Code.
A TNC that violates or fails to comply with the new law will be subject to penalties of not less than $1,000 and not more than $5,000 for each violation.
TNCs operating in the State of California should consider reviewing and, if necessary, revising their criminal background check programs to ensure compliance with the new law and also to ensure that their third-party background screening company is searching the appropriate databases. Moreover, California TCNs, including those operating on a nationwide basis, may want to conduct a broader (and privileged) assessment of their pre-employment screening practices to strengthen their compliance with federal, state and local laws, including the Fair Credit Reporting Act1 and state and local “ban the box” laws.2
1 See Jennifer Mora, Federal Courts Increase Scrutiny of Employer Compliance with the FCRA’s Adverse Action Requirements, Littler Insight (Jan. 4, 2016).
2 See Jennifer Mora, Philip Gordon and Matthew Curtin, Connecticut Becomes the Third Jurisdiction in 2016 to “Ban the Box”, Littler Insight (Jun. 3, 2016); Jennifer Mora, Vermont Joins the Ranks of Cities and States that “Ban the Box”, Littler Insight (May 10, 2016); Philip Gordon and Jennifer Mora, Austin Becomes the First City in Texas to “Ban the Box”, Littler Insight (Mar. 25, 2016).