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New California Employment Regulations Affect Use of Criminal History Information During Hiring Process

Businesses that employ multiple people may be subject to employment statutes at multiple levels of jurisdiction, from city ordinances to state and federal statutes. Employers may not discriminate against employees or job applicants on the basis of multiple factors. In many jurisdictions around the country, this includes limitations on how employers may inquire about and consider criminal history during the hiring process. While employers may be reticent about hiring someone with a criminal record, California law seeks to ensure that past mistakes do not unreasonably burden people who need a job. California businesses and business owners should be aware of recent amendments to the state regulation that addresses access to and use of criminal history during the hiring process.

Laws that restrict employer inquiries about criminal history are sometimes known as “Ban the Box” (BTB) laws. They generally prohibit employers from asking about criminal history at the beginning of the job application process. Some application forms include a box that applicants must check “yes” or “no,” indicating whether they have ever been arrested or convicted of a crime. BTB laws often prohibit employers from asking about or considering criminal history—the aforementioned “box”—until an applicant has cleared the first hurdles of the process.

Some employers may see any criminal history as cause for automatic rejection of that applicant, and there are a number of valid business reasons for this view. For job applicants, however, this sort of practice makes it more difficult—and sometimes nearly impossible—for someone to find a job. This can have negative effects on society as a whole, since people with criminal records might be more likely to return to crime if no one will offer them a job. BTB laws try to ensure that criminal history only affects job applicants when the past crime directly relates to the job.

California law, on a statewide basis, only limits the use of certain types of criminal history, although ordinances in many local jurisdictions may impose additional restrictions. The laws relating to criminal history in employment apply to employers with at least five full-time employees. 2 CCR § 11008(d). Covered employers may not, under almost any circumstances, ask job applicants about arrests that did not result in a criminal charge or conviction, criminal cases that ended in a pretrial diversion program, convictions that have been sealed or dismissed, or cases that were handled by a juvenile court. Cal. Lab. Code § 432.7(a), 2 CCR § 11017.1(b). State and local agencies are further prohibited from asking job applicants about any criminal history until they have “determined the applicant meets the minimum employment qualifications.” Cal. Lab. Code § 432.9(a).

Amendments to state employment regulations, which took effect at the beginning of July 2017, add non-felony convictions for marijuana possession to the types of criminal history that employers cannot consider, provided the convictions occurred more than two years earlier. 2 CCR § 11017.1(b)(5). Employers are also now required to consider whether adverse employment decisions based on criminal history will have a disparate impact on a class of people—such as race or religion—that is otherwise protected by anti-discrimination laws.

For over 40 years, Cirrus Law PC has represented businesses and business owners in the Bay Area, protecting their rights and interests in both litigation and transactional matters. To schedule an initial confidential consultation with a knowledgeable and experienced business advocate, contact us today online or at (925) 463-1073.

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