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AB-1008 Transportation network companies: participating drivers: investigative consumer reports.(2019-2020)

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Date Published: 09/04/2019 09:00 PM
AB1008:v97#DOCUMENT

Amended  IN  Assembly  September 04, 2019
Amended  IN  Assembly  August 13, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1008


Introduced by Assembly Member Salas

February 21, 2019


An act to amend Section 5445.2 of the Public Utilities Code, relating to transportation.


LEGISLATIVE COUNSEL'S DIGEST


AB 1008, as amended, Salas. Transportation network companies: participating drivers: investigative consumer reports.
The Passenger Charter-party Carriers’ Act defines a transportation network company as an organization, whether a corporation, limited liability company, partnership, sole proprietor, or other form, operating in California that provides prearranged transportation services for compensation using an online-enabled platform to connect passengers with drivers using a personal vehicle. Existing law requires a transportation network company to conduct, or have a third party conduct, a local and national criminal background check for each participating driver, as specified.
Under existing federal law, the Fair Credit Reporting Act, a person may procure a consumer report for employment purposes, if, among other things, the person makes a clear and conspicuous disclosure in writing to the consumer that a consumer report may be obtained for employment purposes and the person first obtains the written authorization of the consumer. The Federal Trade Commission has interpreted this to mean that an employer may use a one-time blanket disclosure, and obtain permission from applicants or current employees to procure consumer reports, at any time during the application process or during the employee’s tenure. Existing state law also authorizes the procurement of an investigative consumer report under generally the same conditions as federal law, but requires the person seeking the investigative report to provide written disclosure to, and to obtain written consent from, the consumer any time before a report is procured for employment purposes of the same consumer.
This bill would exempt a transportation network company from the above-described state law that requires making additional written disclosures and obtaining additional written consent from the consumer any time a report is procured. The bill would provide, however, that the requirements under the federal Fair Credit Reporting Act that a person provide clear and conspicuous disclosure to, and to first obtain written authorization from, a consumer before procuring a consumer report would still apply to transportation network companies. The bill would also correct erroneous cross-references to code sections.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Under the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681b et seq.), employers seeking to obtain a consumer report for employment purposes are required to provide a “clear and conspicuous disclosure ... in writing to the consumer” and to obtain the consumer’s authorization in writing before procuring a report.
(b) The Federal Trade Commission has explained that an “employer may use a one-time blanket disclosure, and obtain permission from applicants or current employees to procure consumer reports, at any time during the application process or during the employee’s tenure” (see Federal Trade Commission report, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations (July 2011 at page 51)).
(c) California law, with respect to investigative consumer reports being sought for employment purposes, operates somewhat differently from federal law regarding consumer disclosure and authorization.
(d) Under the Investigative Consumer Reporting Agencies Act (Title 1.6A (commencing with Section 1786) of Part 4 of Division 3 of the Civil Code), if “at any time, an investigative consumer report is sought for employment purposes other than suspicion of wrongdoing or misconduct by the subject of the investigation, the person seeking the investigative consumer report” is required to provide disclosure and obtain written authorization.
(e) Under California law, it is thus ambiguous as to whether the disclosure provided to a consumer, and the subsequent authorization obtained from that consumer, remains valid throughout the course of the consumer’s engagement, or if, instead, a separate disclosure needs to be provided to a consumer and additional authorization obtained from that consumer each time an employer seeks to obtain an investigative report.
(f) When an employer seeks to obtain an investigative consumer report for employment purposes, the employer often procures the report on an ongoing basis to ensure the safety of their workplaces.
(g) The procurement of investigative consumer reports on an ongoing basis is especially warranted when employees or independent contractors interact closely with the public, especially when those employees or independent contractors are drivers for the general public.
(h) Consistent with the earlier legislative acknowledgment for the need to conduct more extensive investigative consumer reports for drivers of transportation network companies, it is necessary to revise the applicable statutory requirements to allow transportation network companies to obtain a one-time authorization for single, multiple, or ongoing investigative consumer reports.
(i) This modification would not affect the requirement under the federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681b(b)(2)) that requires the employer to disclose its request for an investigative consumer report and to obtain the written authorization of the potential driver before obtaining the initial consumer report.

SEC. 2.

 Section 5445.2 of the Public Utilities Code is amended to read:

5445.2.
 (a) (1) A transportation network company shall conduct, or have a third party conduct, a local and national criminal background check for each participating driver that shall include both of the following:
(A) The use of a multistate and multijurisdiction criminal records locator or other similar commercial nationwide database with validation.
(B) A search of the United States Department of Justice National Sex Offender Public website.
(2) A transportation network company shall not contract with, employ, or retain a driver if the driver meets either of the following criteria:
(A) Is currently registered on the United States Department of Justice National Sex Offender Public website.
(B) Has been convicted of any of the following offenses:
(i) A violent felony, as defined in Section 667.5 of the Penal Code.
(ii) A violation of Section 11413, 11418, 11418.5, or 11419 of the Penal Code.
(3) A transportation network company shall not contract with, employ, or retain a driver if the driver has been convicted of any of the following offenses within the previous seven years.
(A) Misdemeanor assault or battery.
(B) A domestic violence offense.
(C) Driving under the influence of alcohol or drugs.
(D) A felony violation of Section 18540 of the Elections Code, or of Section 67, 68, 85, 86, 92, 93, 137, 138, 165, 518, or 530 of, subdivision (a) of Section 484 of, or subdivision (a) of Section 487 of, the Penal Code.
(4) Paragraphs (2) and (3) apply with respect to a conviction of any offense committed in another jurisdiction that includes all of the elements of any of the offenses described or defined in those paragraphs.
(5) This section shall not be interpreted to prevent a transportation network company from imposing additional standards.
(b) A transportation network company that violates, or fails to comply with, this section is subject to a penalty of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) for each offense.
(c) (1) Notwithstanding Section 1786.12 of the Civil Code, an investigative consumer reporting agency may furnish an investigative consumer report to a transportation network company about a person seeking to become a participating driver, regardless of whether the participating driver is to be an employee or an independent contractor of the transportation network company.
(2) Paragraph (2) of subdivision (a) of Section 1786.16 and paragraph (7) of subdivision (a) of Section 1786.18 of the Civil Code do not apply to an investigative consumer report furnished to a transportation network company pursuant to paragraph (1). Nothing in this section, however, affects the requirements of the federal Fair Credit Reporting Act that the transportation network company provide clear and conspicuous disclosure to, and first obtain written authorization from, a potential employee or an independent contractor before procuring a consumer report (15 U.S.C. Sec. 1681b(b)(2)).