Following a trend in California regarding increased leniency for those with conviction records, and ensuring that formerly incarcerated people are not unduly burdened by their past, Governor Newsom recently signed SB-731 into law. SB-731 effectively seals the records of many felony convictions if they: (a) occurred on or after January 1, 2005; and (b) if the individual has completed all terms of incarceration, probation, mandatory supervision, post-release community supervision, and parole; and (c) are not convicted of a new felony for four years.
Since January 1, 2018, the California Fair Chance Act barred employers from asking candidates about their conviction history on a job application, or running a conviction background check until after they offered the candidate a job (see our blog post on the Fair Chance Act, here).
Now, the inquiry into criminal records will be further limited effective July 1, 2023, as formerly incarcerated individuals’ records will be automatically sealed. This will undoubtedly lower the impact of criminal records on employment decisions.
Notably, SB-731 does not apply to all felony convictions. It does not apply to registered sex offenders or individuals convicted of violent or serious felonies. It further does not affect the ability to receive, or take adverse action based on, criminal history information for purposes of teacher credentialing or employment in public education.
Many employers routinely conduct background checks on applicants. However, with SB-731 signed into law, it may not be worth it to continue to do so. Those background checks will yield less information, and the Fair Chance Act already limits what information you can use if there is a conviction. Practically speaking, for many employers (such as retail, hospitality, manufacturing, and professional services), your efforts may be better spent having a responsible person at your company (preferably someone in Human Resources) conduct a simple search of publicly available information on social media. A social media search is completely legal, as long as you do it consistently, and as long as you do not rely on any information about protected categories to make unlawful decisions. For example, you cannot screen out applicants based on age, disability, or sexual orientation. Despite the risk of learning about protected categories, social media searches may provide you with more insight into a potential candidate than any background check. But please, do not be “sneaky,” and trick anyone into friending you to see information that is not publicly available.
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