A criminal record can lock you out of specific employment opportunities and even deny you housing within certain neighborhoods. If you have a criminal record, it is natural to worry about your chances of finding a job, mainly because most employers do a criminal background screening on potential candidates. Some even request information about applicants' criminal histories on the job application.
Fortunately, California passed the Ban-the-Box Law on January 1, 2018. Under the amended Fair Housing and Employment Act (FEHA), it is illegal for public and private employers with at least five employees to inquire about a job applicant’s criminal history until the end stages of qualifying candidates for a specific job position. The law seeks to ensure employers thoroughly assess the qualifications and aptitudes of different applicants instead of secluding them based solely on their criminal past.
California’s Ban-the-Box Law
The Ban-the-Box law applies to both public and private employers across multiple states. Over thirty states have implemented these mandates for public employers. The states that follow the law in both the public and private sector include California, Connecticut, Colorado, Minnesota, Maryland, Massachusetts, Vermont, Rhode Island, Washington, New Mexico, New Jersey, Hawaii, Oregon, and Illinois.
Ban the box amendments make it unlawful for employers in the public or private sectors with at least five employees to inquire about applicants' criminal past until the tail stages of an application process. Essentially, these amendments promote a fair hiring process, where employers consider the fitness of various applicants based on their credentials and aptitudes and not solely their criminal past.
Ban the box laws have been in effect since January 1, 2018. These laws work, especially for low-skilled handypersons who most employers assume have a criminal record. The law protects them from being disqualified way before an employer gives them a chance to showcase their abilities.
Relation Between Ban-The-Box Law and Antidiscrimination Laws
In California, both state and federal laws make it unlawful for employers to discriminate against job applicants based on specific characteristics such as their ethnicity or race. Adopting a blanket policy of disqualifying applicants with a criminal record can imply racial discrimination, more so that the rates of arrests and convictions are higher among Latinos and African Americans.
Equal Employment Opportunity Commission Guidelines
There are guidelines outlined by the Equal Employment Opportunity Commission (EEOC) that dictate how employers can sieve out job applicants with criminal pasts. These guidelines ensure employers do not engage in discrimination even as they disqualify applicants who pose unreasonable risks.
Under the EEOC mandates, employers must allow applicants with a criminal past to explain the events around an offense and even table mitigating information that potential employers must consider. Essentially, this ensures fair hiring protocols that do not exclude those with criminal records, especially if they do not pose any risks to a company. The ban-the-box laws further incorporate these guidelines to provide adequate protection for those with criminal pasts.
Fair Employment and Housing ACT Guidelines
Also, the Fair Employment and Housing Act (FEHA) issued guidelines effective 1st July 2017 that shows how employers can avoid discrimination lawsuits when evaluating applicants with criminal records. These applicants are a protected class of people. Employers' practices should only allow disqualification based on job-related qualities or aptitudes necessary to the proper running of a specific business.
The requirements set by the Fair Employment and Housing Council are pretty similar to those set by California's ban-the-box laws. Both conditions illegalize employer practices of disqualifying job applicants solely based on their criminal pasts. Also, they give employers the mandate to allow an applicant to explain themselves and show that they do not pose any unacceptable levels of risk to a company.
The law illegalizes discrimination based on a job applicant’s race, national origin, and race, among other categories. When an applicant with a criminal record falls under any of these discrimination-prone categories, the burden of proving the reasons behind a disqualification falls on the company/employer. It is necessary to demonstrate that the decision not to hire an ex-convict is purely job-related and in line with business necessity.
There are two factors employers can use to demonstrate their lack of discrimination:
- The nature of an offense in relation to the nature of a job
- The amount of time that has elapsed since a conviction and the completion of a sentence
Moreover, the employer must show the link between candidates with a particular criminal record and the high level of risk they pose or the direct bearing the job can have on the convict’s ability to do their duties. Most importantly, the applicant should get the chance to explain why their criminal past should not disqualify them from consideration as viable candidates.
Labor Codes
California has a range of labor codes that make specific information about a job applicant’s criminal record off-limits. These labor codes include:
- Labor Code Section 432.7 — This law prohibits employers from asking about a job applicant’s arrest history that did not result in a conviction. The labor code also makes it unlawful to ask about cases that ended up in pre-trial or post-trial diversion programs.
- Labor Code Section 432.8 — Employers do not have the right to ask job applicants about marijuana-related convictions that are at least two years old. The law prohibits employers from asking applicants about expunged, sealed, or statutorily erased convictions. Likewise, it is unlawful to ask for information regarding juvenile records that touch on arrests, detentions, or adjudications.
- Labor Code Section 432.9 — Unless an employer seeks to fill law enforcement vacancies or sensitive positions that require working with children, the disabled, or the elderly, it is prohibited to request criminal background information during the initial stages of a job application.
Also, the law makes it unlawful for an employer to source information about an applicant’s arrest or conviction history from other sources apart from the applicant in question. Information from a third party cannot be used to make employment decisions unless an employer seeks the applicant's consent beforehand.
The Use of Arrest and Conviction Records Before and After a Conditional Offer of Employment
As aforementioned, the law prohibits employers from asking about an applicant’s criminal history during the initial stages of a job application. An employer can only ask for this information after issuing a conditional offer of employment. The law also requires employers to make individualized assessments after establishing an applicant’s conviction record.
In short, AB 1008 prohibits employers from considering or asking about an applicant’s criminal record before issuing a conditional letter of employment. This includes records about felony and misdemeanor convictions or even expunged records. Furthermore, information about expunged criminal convictions is simply off-limits to private and public employers.
So, are employers allowed to ask about the criminal pasts of potential candidates during an interview?
Again, information about an applicant’s criminal history is off-limits until an employer extends a conditional offer of employment. The laws prohibit such questions during the first or final round of interviews. Until candidates are screened based on their abilities and those qualified issued with an employment offer, no one should ask about your criminal background.
A conditional offer of employment implies that a candidate can have a specific job if they meet particular terms and conditions. These terms could even include having a clean criminal background. If an employer learns about a conviction after issuing a conditional letter of employment, they have a right to do a personalized assessment. The idea is to focus on aspects that help them decide whether a specific candidate poses any unreasonable risks.
Background Check Guidelines
It is within the right of an employer to do a criminal background check on potential job candidates in-house or using a third party. When using a third party, employers must also abide by the federal rules set by FCRA (Fair Credit Reporting Act). These rules make it mandatory to ask for an applicant’s written consent before conducting the checks.
Also, an employer must provide notices centered on the contents of the background check report. These notices are as follows:
Opportunity to Respond
If an employer opts not to hire an applicant, the company must send a written notice of the decision. The message must indicate the specific conviction that leads to disqualification and attach a copy of the conviction history report in question.
By law, information about arrests or convictions that happened over seven years ago should not be indicated in the background check report. While a few exceptions apply, most employers are prohibited from using such records in making their decision to disqualify an otherwise-qualified candidate.
Also, the notice should inform the applicant of their right to respond with an explanation or preferably evidence that highlights mitigating factors or inaccuracies. This notice should also provide a reasonable deadline (at least five business days) for the applicant to respond.
Some of the mitigating evidence that can change an employer’s decision includes proof of completing a drug rehabilitation program or any efforts the applicant has made to make amends for a specific crime.
Notice of Final Decision
Once an applicant has had the chance to respond, an employer must consider the tabled information. If the final decision is to disqualify an applicant, the law requires the employer to give a written notice again. This notice must remind the applicant of their right to approach the Department of Fair Employment and Housing (DFEH) and file a complaint if they have reason to feel discriminated against.
If a potential employer fails to comply with any of the ban the box rules, an applicant has the right to file a complaint with the DFEH. You can also file an employment discrimination lawsuit to seek compensation for any damages suffered for being locked out of a job position you deserved. Also, if you win the case, the accused employer has to provide compensation that covers court-related expenses, including attorney fees.
Penal Code 1203.4 PC — Criminal Record Expungement
Seeking to have your criminal record expunged has numerous priceless benefits. The most notable is that you will have an easier time finding meaningful employment. The law allows employers to do background checks on potential employees, meaning that your arrest, conviction, and probation records are likely to rear their ugly heads at some point.
Record expungement allows you to lawfully give a “no” answer if an employer asks about your criminal past after providing a conditional employment offer. Even if you have been convicted in the past, the law protects those with expunged records from being disqualified from viable job positions based on their deleted criminal records.
Moreover, record expungement allows you to seek state professional licenses without fear of again being disqualified based on your criminal past. You can apply for a real estate license, a contractor’s license, or even apply for particular public posts.
Generally, seeking record expungement reduces the odds of your criminal past impacting your future. It allows you to open a new chapter away from the stigma associated with a criminal conviction popping up in your background checks whenever you apply for job positions or even seek housing within specific neighborhoods. Even if you are not interested in employment, record expungement offers personal satisfaction, especially for those seeking redemption for their past mistakes.
The record expungement process is complicated, and it is always better to have a skilled attorney in your corner. The expert will review all the details allied with a conviction and inform you of your eligibility for the process. Most importantly, your attorney will handle the necessary paperwork on your behalf and even help persuade the court to reduce a felony to a misdemeanor to ensure you qualify for the process.
Find a Record Expungement Attorney Near Me
A criminal record can cripple your chances of finding meaningful employment. Employers that abide by the ban-the-box laws can still disqualify you based on your criminal past without breaking any employment anti-discrimination laws. At the Record Expungement Attorney, we understand the challenges of having a criminal record. We can help you find post-conviction relief in Los Angeles through record expungement, destroying arrest records, and sealing juvenile records. Call us today at 424-286-1516, and let us offer you 100% free personalized guidance during an initial consultation.