New California Laws Restrict the Discretion Employers Have to Inquire Into and Use Criminal Record Information

by Littler
Contact

On October 10, 2013, California joined the growing list of states with expanded protections for individuals with prior criminal records when Governor Jerry Brown approved a bill (SB 530) amending the California Labor Code.1  Effective January 1, 2014, SB 530 amends Labor Code section 432.7 to include an additional prohibition for public and private employers related to pre-employment inquiries, and adds section 4852.22 to the Penal Code shortening the waiting period to receive a Certificate of Rehabilitation.  Governor Brown also signed AB 218, which, effective July 1, 2014, will bar public sector employers from asking about criminal records on employment applications (a so-called "ban the box" law). 

California's Public and Private Sector Employers are Prohibited From Inquiring About Expunged, Sealed or Dismissed Records

Labor Code section 432.7 currently prohibits public and private employers from requesting job applicants to disclose, or considering as a factor in determining any condition of employment, information concerning (1) an arrest or detention that did not result in a conviction or (2) referral to, or participation in, a pretrial or posttrial diversion program.  The penalties for intentional violation of these provisions as set forth in Labor Code section 432.7 are the greater of $500 or treble actual damages, reasonable attorney's fees and costs, and a fine not to exceed $500.  SB 530 does not change the penalty and enforcement provisions in section 432.7, but amends section 432.7 to prohibit public and private employers from asking job applicants about criminal records that have been expunged, sealed or dismissed.

Employers are exempt from these requirements in the following circumstances: (1) the prospective employer is required by law to obtain that information; (2) the job position requires the applicant to possess or use a firearm in the course of his or her employment; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that crime has been judicially dismissed, expunged, statutorily eradicated or ordered sealed; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Additionally, SB 530 adds Penal Code section 4852.22 to shorten the waiting period for certain individuals seeking to apply for a Certificate of Rehabilitation.  A Certificate of Rehabilitation does not expunge an individual's criminal record but is instead a court finding that an individual has been rehabilitated following a criminal conviction.  Among the benefits of a Certificate of Rehabilitation is that former offenders have an increased likelihood of being granted a professional or occupational license.  Prior to the Governor signing SB 530, former offenders were permitted to apply for a Certificate of Rehabilitation following a minimum seven-year waiting period after discharge from custody or release on parole or probation, whichever came first.  Penal Code 4852.22 will now permit a trial court to grant an application for a Certificate before the seven-year waiting period has expired if the court, in its discretion, has determined that the interests of justice are served.

The California Governor "Banned the Box" For Public Sector Employers

In recent years, there has been an increase in the number of state and local jurisdictions that have enacted so-called "ban the box" laws, which generally prohibit employers from inquiring about an applicant's criminal record on an employment application.  Rhode Island and Minnesota are the most recent states to enact such legislation for private sector employers.2  The Equal Employment Opportunity Commission has likewise endorsed this limitation in its updated guidance regarding consideration of arrest and conviction records under Title VII of the Civil Rights Act of 1964.3

Most of these "ban the box" laws apply to cities as "employers" with such laws recently enacted in municipalities including Pittsburgh, Pennsylvania and Wilmington, Delaware, or to city vendors and contractors, such as in Detroit, Michigan.  In fact, most recently, the governor of Illinois issued an administrative order prohibiting state agencies from asking about an applicant's criminal history before evaluating his or her knowledge, skills and ability to perform the job. 

Effective July 1, 2014, California will join this growing list of jurisdictions that "ban the box," but only for public sector employers.  Even before Governor Brown signed AB 218, however, several California cities had passed ordinances with similar restrictions.  For example, Richmond, California's ordinance prohibits private businesses contracting with the city "from asking about prior criminal convictions on employment applications."  Other California cities that have banned the box include Berkeley, East Palo Alto, Oakland and San Francisco.

Under AB 218, California state and local agencies, cities and counties must first determine an applicant's minimum qualifications for the position before inquiring about the applicant's conviction history.  AB 218 does not, however, apply to law enforcement positions or positions where the applicant will work with children, the elderly, the disabled or other sensitive positions.

Action Steps for Employers

The number of state and local laws affording employment-related protections to ex-offenders has grown and, in all likelihood, will continue to do so.  Now is an excellent time for local employers and multi-state employers that use a nationwide form of job application to assess thoroughly whether their job application, including questions about prior criminal records, complies with state and local laws where the employer operates and hires.

Of course, when conducting criminal background checks, employers should also be mindful of the various laws that relate to the background check process.  For example, the EEOC continues to investigate vigorously whether criminal background checks have a "disparate impact" on protected class members for purposes of Title VII.

In addition, when using a third-party screening firm (consumer reporting agency) to obtain background information on applicants or existing employees, employers must follow the requirements of the federal Fair Credit Reporting Act (FCRA), including the FCRA's provisions requiring advance consent for the background check and providing appropriate notices when any adverse employment decision is based, in whole or in part, on the information disclosed in a background report.4


1 See Rod Fliegel, Pam Salgado, Dan Thieme and Jennifer Mora, Seattle Adopts Ordinance Limiting Inquiries Into and Use of Criminal Records for Employment Purposes, Littler ASAP (June 20, 2013).

2 See Rod Fliegel and Jennifer Mora, Rhode Island Enacts "Ban the Box" Law Prohibiting Employment Application Criminal History Inquiries Until the First Job Interview, Littler ASAP (July 17, 2013); Dale Deitchler, Rod Fliegel, Susan Fitzke and Jennifer Mora, Minnesota Enacts "Ban the Box Law" Prohibiting Employment Application Criminal History Checkmark Boxes and Restricting Criminal Record Inquiries Until After Interviews or Conditional Job Offers, Littler ASAP (May 17, 2013).

3 See Rod Fliegel, Barry Hartstein and Jennifer Mora, EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers, Littler ASAP (Apr. 30, 2012).

4 See Rod Fliegel and Jennifer Mora, Employers Must Update FCRA Notices for Their Background Check Programs Before January 1, 2013, Littler ASAP (Sept. 4, 2012); Rod Fliegel and Jennifer Mora, The FTC Staff Report on "40 Years of Experience with the Fair Credit Reporting Act" Illuminates Areas of Potential Class Action Exposure for Employers, Littler Report (Dec. 12, 2011).

Written by:

Littler
Contact
more
less

Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.