Only certain background information of ex-convicts will be searchable for employment now that Governor Jerry Brown has signed SB 1412, which amends Section 432.7 of the California Labor Code. As our Riverside employment attorneys can explain, the measure stipulates that employers conducting criminal background checks on job applicants may only ask about/ weigh convictions that are relevant to the job for which a prospective employee is applying.
The new California employment law, effective January 1, 2019, applies not just to private individuals and corporations but also public agencies. Companies won’t be barred from conducting criminal background checks on job applicants, but they will be restricted in doing so. It doesn’t stop public or private employers from conducting criminal background checks as required by local, state or federal law. It does however replace the provision that allows employers to inquire about “criminal convictions” to instead say, “particular convictions.”
Doesn’t California Law Already Protect Ex-Convict Job Seekers?
As your Riverside employment attorney can explain, California law does to an extent already protect those seeking a job from being required to reveal certain information. However, SB 1412 takes it a step further in shielding more workers from discrimination based on prior criminal history.
The current law does not permit employers to ask prospective employees to require disclosure of information pertaining to pre-trial or post-trial diversion programs or about convictions that were ordered sealed or judicially dismissed. So while (generally speaking) a hiring company could fairly easily scour public records and find arrest information, they can’t lawfully use that in their employment decision if there was no conviction obtained or if it was resolved via a diversion program.
One of the first things the amended law does is stipulate that “employer” can be a public agency, corporation or private individual.
Secondly, it expands on the exception to the law regarding criminal background checks of employees that is required by law. Favoring the employer in this provision, the exception is amended to say that it must be a “particular conviction,” but it also broadens the exception by indicating inquiry in that situation can extend to include convictions that have been expunged, sealed, statutorily eradicated or dismissed by the court after successful probation.
In total, it amends three of the four existing exceptions on employer criminal background checks on job applicants. It indicates that employers can consider whether a job seeker is convicted of a crime prohibited by law from holding that position sought, regardless of whether it’s been expunged, etc. – BUT only if the conviction meets the “particular conviction” exception criteria. The law also amends the exception to say that if an employer is barred by law from hiring a person convicted of a crime, that it must be for that “particular conviction,” even if the offense has been expunged, sealed, etc.
Lawmakers defined “particular conviction” in the statute as: “A conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law containing requirements, exclusions or both expressly based on that specific criminal conduct or category of criminal offenses.”
As our Riverside employment attorneys can explain in layman’s terms: Employers can’t just go on a fishing expedition and refuse to hire anyone with any criminal conviction. Some jobs, like law enforcement and education, have broad criminal conviction exclusions for prospective employees. This law won’t do much if anything to alter those criteria. However, employers simply seeking to exclude any applicant for any prior criminal conviction – regardless of whether it has anything to do with the job – will no longer legally have this option in California.
If you suspect you have been unlawfully discriminated against by a prospective employer on the basis of your criminal conviction, speak to an experienced Riverside employment attorney to discuss your rights.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Additional Resources:
Sen. Steven Bradford 2-for-2 in bill signage by governor, Oct. 2, 2018, Compton Herald
More Blog Entries:
$8M California Wrongful Termination Verdict for Framed Worker, Nov. 15, 2018, Riverside Employment Discrimination Attorney Blog