From the Hotline: California Law Restricting Employers from Asking About Felony Convictions

Question: Is there a new law in California that restricts an employer’s ability to ask about felony convictions? If so, should we revise our employment application?

Answer: California Labor Code § 432.7 already prohibited public and private employers from asking an applicant for employment to disclose information concerning the following:

  • An arrest or detention that did not result in a conviction.
  • A referral or participation in any pretrial or post-trial diversion program.

The law also prohibited employers from considering the information as a factor in determining any condition of employment, such as hiring, promotion, or termination of employment.

Effective January 1, 2014, a new state law (SB 530) became effective restricting the ability of private-sector employers to inquire into certain criminal background information that had been judicially expunged, sealed, or dismissed. Further, the City of San Francisco enacted The Fair Chance Ordinance No. 17-14 that prohibits employers with at least 20 employees from inquiring about a job applicant’s criminal history on an employment application, including “checking the box” to indicate criminal convictions or other criminal justice system involvement. It also prohibits covered employers from asking about criminal history during an initial interview. The law applies not only to regular employees, but also those performing contracted or contingent work, or working through a temporary agency. The Ordinance becomes effective August 13, 2014.

Exceptions to these requirements include the following:

  • The employer is required by law to obtain that information.
  • The applicant would be required to possess or use a firearm in the course of his or her employment.
  • An individual who has been convicted of a crime is prohibited by law from holding the position, even if the conviction had been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
  • The employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Another new state law that will be effective July 1, 2014 restricts public employers (AB 218 or the so-called “Ban the Box” law) from asking an applicant to disclose information regarding a criminal conviction until after the agency determines the applicant meets minimum employment qualifications. There is an allowable exception where the criminal history background check is required by law for the position.

These laws have that nickname because they generally prohibit employers (in this case, California public sector and San Francisco employers only) from including a check box on the application asking about criminal convictions and using the response as an automatic disqualification.

While private sector employers in the state outside of San Francisco are not required to remove the box from the application at this time, the Equal Employment Opportunity Commission (EEOC) has suggested guidance that “employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquires be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.”

We recommend the following best practices to employers to comply with the new rules:

  • Private Employers: Consider amending your job application form if you have a question that results in automatic disqualification based on criminal convictions. Only include the optional request for criminal history information when necessary for the specific position for which an applicant is applying. Limit inquiries to those that are truly job-related. No employer should seek information about convictions that have been expunged, sealed, or dismissed.
  • Public Sector and San Francisco Employers (with more than 20 San Francisco employees): To comply with the new law, remove the box language from your employment application.
  • Continue to conduct criminal background checks as required for the position and consult with legal counsel prior to making any negative employment actions.
  • Train managers regarding appropriate questions to ask in the recruiting process that avoid discussion of criminal records resulting in dismissed, expunged, or sealed records.

Sources:

California SB530: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml

California AB218: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml;jsessionid=d652a805c2251d5769bb71e47b43

San Francisco Fair Chance Ordinance: https://sfgov.legistar.com/View.ashx?M=F&ID=2914127&GUID=58B85B9D-886A-4AE8-8F14-BB3ECEAA4557