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Can California Employers Ask Prospective Employees About Their Criminal History?

Posted on in Employment

California employers, prospective employees, criminal history, San Jose employment lawyers, employment regulationsLawmakers in California are toying with the idea of passing new legislation (Assembly Bill 1008) that would make it illegal for most employers in California to ask prospective employees about their criminal histories during the initial stages of the hiring process. However, under the proposed legislation employers would have the right to enquire about an applicant’s criminal history after making a conditional job offer. The Sacramento Business Journal points out that Assembly Bill 1008 is seen as an extension of the “ban-the-box” initiative that California lawmakers passed several years ago.

Ban-the-Box

In 2013, California’s ban-the-box bill took effect and prohibited government employers in the state from asking prospective employees about their criminal histories on job applications. Although this statute only applied to employers in the public sector, many cities across California have followed suit and enacted similar laws that apply to private employers. However, many of these laws only restrain employers with a specified number of employees from inquiring about a job seeker’s criminal past on a job application so many small employers are currently exempt from this prohibition.

Current Hiring Regulations

Apart from ban-the-box statutes, employers in California should also be aware of a few other key hiring regulations that are currently on the books in order to aid job seekers who have had run ins with the law in the past.

Littler.com points out that thanks to employment regulations from the California Fair Employment & Housing Council, employers across California (no matter how many workers they employ) are currently prohibited from seeking information about or considering criminal records pertaining to any of the following situations when hiring a new employee:

  • An arrest that did not result in a conviction,
  • A non-felony marijuana infraction or conviction that is more than two years old,
  • Referral to or participation in a diversion program,
  • A juvenile record, or
  • A conviction that has been sealed, expunged, judicially dismissed, or eradicated by law.

How Can a Prospective Employee Show Adverse Impact Discrimination?

If a prospective employee with a criminal record believes that a California employer improperly sought information about or considered his or her criminal history during the hiring process, then he or she may be able to file an employment discrimination claim alleging that the employer’s screening policies disproportionately have an adverse impact on a protected class. Filing or defending against such a lawsuit is quite complicated but a local employment lawyer will be able to evaluate the specifics of your case and discuss your legal options with you.

Contact a Local Employment Lawyer Today

If you believe that a California employer improperly considered your criminal history during the hiring process, or if you are a California employer accused of improperly discriminating against a job applicant because of their criminal history, the experienced San Jose employment lawyers of Jachimowicz Law Group would be happy to assist you. Our firm represents clients involved in a wide variety of employment law matters and has extensive experience handling employment discrimination cases, including those involving racial discrimination, and workplace sexual harassment and wrongful termination. Contact us today for help.

Sources:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1008

https://www.littler.com/publication-press/publication/california-employers-are-subject-new-requirements-when-using-criminal

https://www.bizjournals.com/sacramento/news/2017/09/05/bill-to-prohibit-employers-from-seeking-applicants.html

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