New California Law Significantly Impacts Use of Past Criminal Records by Employers during Employment Background Screening

A new law in California that took effect January 1, 2014 – Senate Bill No. 530 (SB 530) – provides significant new protection to ex-offenders who committed crimes, including felonies, when it comes to job hunting and what employers can legally discover or use.  The new law prohibits an employer from asking about, seeking, or utilizing criminal convictions that have been judicially set aside.  Employers violating the new prohibitions can face civil penalties and even misdemeanor criminal charges if done intentionally. It also allows a convicted person to get a case expunged sooner. The full text of California SB 530 is available at http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0501-0550/sb_530_bill_20131010_chaptered.htm.

The new law amends California Labor Code Section 432.7 to explicitly prohibit employers from  asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed. The current law already provided protection when it came to an arrest that did not result in a conviction (although it permits employers to utilize a case that is currently pending and not yet resolved.) The legislation adds protection for criminal convictions that have been expunged or judicially set aside. The new law states that:

(a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.

There are exceptions when it comes to expunged crimes where 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 sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation, or if the employer is prohibited by law from hiring an applicant who has been convicted of a crime. See: http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0501-0550/sb_530_bill_20131010_chaptered.htm.

The California schema to provide judicial set asides from convictions is complex and the appropriate remedy depends upon numerous details, including the criminal code violated, the sentence imposed and served, and subsequent behavior. There are certain limitations on the ability to obtain an expungement, such as a state prison sentence or violation of certain sex crimes. The Penal Code sections identified in the legislation, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 can be found at: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=01001-02000&file=1191-1210.5.

The new law arguably clarifies and expands the protections of Penal Code section 1203.4 that permits expungement under California law. Existing law already provided that when an offender obtained an expungement, they were “released from all penalties and disabilities resulting from the offense of which he or she has been convicted” with some exceptions. The new statues clarifies that the relief extends to the employment process as well.

Some of the protection in the new law is similar to a long standing California rules formulated by the Department of Fair Employment and Housing (DFEH) which has promulgated rules for the use of criminal records in the California Code of Regulations.  These rules also have the force and effect of law. Pursuant to 2 Cal. Codes Regs Sec. 7287.4(d)(1) (Register 95, No. 29: 7-21-95). Under the current regulations:

(1) Criminal Records. Except as otherwise provided by law (e.g., 12 U.S.C. 1829; Labor Code Section 432.7), it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning: (A) Any arrest or detention which did not result in conviction; (B) Any conviction for which the record has been judicially ordered sealed, expunged, or statutorily eradicated (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code Section 389 and Penal Code Sections 851.7 or 1203.45); any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code Section 1203.4; or (C) Any arrest for which a pretrial diversion program has been successfully completed pursuant to Penal Code Sections 1000.5 and 1001.5. See:  http://www.dfeh.ca.gov/res/docs/Council/ATTACHMENT_B_2_CCR_tit_2_div_4_6-18-13.pdf.

The new statue however, arguably expands the relief to felonies that cannot by law ever be reduced to a misdemeanor.  It also impacts felonies that are known as “wobblers” that can be either a misdemeanor or a felony, where a Court does not grant a motion under Penal Code Section 17b to reduce the felony offense to a misdemeanor before granting the expungement.  The statue also adds protections for judicial set asides occurring  under three related but different sections of California law, Penal Code sections  1203.4a, 1203.45, and 1210.1 of the Penal Code.

In addition, the new law now permits an ex-offender to bring a motion for relief
before the applicable period of rehabilitation has passed if the Court determines  it serves the interest of justice.

As a result, an employer cannot ask, seek or utilize the prohibited information.  Although the exact impact of these new laws remains to be seen, it is clear that employers must pay close attention to the new since Labor Code section 432.7 provides civil damages and makes an intentional violation a misdemeanor. According to the statues, an applicant can claim:

“actual damages or two hundred dollars ($200), whichever is greater, plus costs, and reasonable attorney’s fees. An intentional violation of this section shall entitle the applicant to treble actual damages, or five hundred dollars ($500), whichever is greater, plus costs, and reasonable attorney’s fees. An intentional violation of this section is a misdemeanor punishable by a fine not to exceed five hundred dollars ($500).”

In addition, employers need to be assured that any screening firm they utilize has a full understanding of California law and does not provide an employer with any information that an employer cannot legally ask, find, or utilize in employment.

This new statue again demonstrates that background screening is no longer focused on just providing data. Background screening it is a complex and highly legally regulated professional service that requires knowledgeable professionals.

As set forth in the ESR blog on January 15, 2014, background checks are no longer the vending machine model where you can say ‘Here’s a dollar; give me a piece of data. Screening is squarely in the realm of what can employers legally use; how can they legally obtain it; what is the legal standard of accuracy so it’s usable; what are the legal aspects of even using it in the first place. See: http://www.esrcheck.com/wordpress/2014/01/15/employment-screening-background-checks-focused-on-legal-compliance-in-2014/.

Resources:

FAQ’s from LA Public Defender’s Office:
http://pd.co.la.ca.us/faqs_Expungement.html.

PowerPoint on Remedies for Past Convictions:
http://workingwelltogether.org/sites/default/files/resources/Clean%20Up%20Your%20Past%20To%20Have%20A%20Future%20Training.pdf.

CA State Court Guide ‘Cleaning Your Record’
http://www.courts.ca.gov/1070.htm

Who is NOT eligible to get a California expungement?
http://www.shouselaw.com/expunge-criminal-records.html#1.2

About Employment Screening Resources® (ESR):

Founded by safe hiring expert Attorney Les Rosen in the San Francisco, CA-area in 1997, Employment Screening Resources® (ESR) – ‘The Background Check Authority®’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more about ESR, visit http://www.esrcheck.com, call toll free 888.999.4474, or email sales@esrcheck.com.