Fair Employment is Key
People with criminal records often worry about the effect a criminal record could have on their opportunities in the job industry.
Luckily the state of California has strong laws that help ensure fair employment of opportunities for persons with criminal records. These laws are meant to ensure individuals don’t lack the chance to have stable employment, simply for having a criminal record. Here are some of the protections offered to individuals with criminal records.
California’s Ban the Box Law
The California Fair Chance Act, which became effective on January 1, 2018, made it unlawful for private and public companies with five or more employees from asking about an applicant’s criminal history until they have progressed further into the interview process. This law ensures employers can individually examine whether the interviewee is suitable for the job without disregarding them for having a criminal history. Take a look at some of the restrictions offered by California’s Ban the Box Laws.
Under the Ban the Box laws, it is illegal for employers in private and public companies with five or more employees to inquire, look into, or take into account an applicant’s criminal history before they make an offer of employment.
Once the employer makes an offer of employment, they can then inquire about specific criminal records the applicant has. However, California’s Fair Employment and Housing Act still maintain strict rules regarding the criminal records employers should ignore when considering an employee.
Under post-offer requirements, the employee should ignore:
- Arrests or detention records that did not result in a conviction
- Referrals to or participation in pretrial or post-trial diversion programs
- Conviction records that have been sealed, expunged, or statutorily eradicated.
- Juvenile records
- Non-felony convictions for marijuana offenses that are more than two years old.
Nonetheless, when taking account into account an interviewee’s criminal history, employers are asked to conduct an individualized assessment where they are encouraged to consider:
- The nature and the gravity of the offense
- The time passed since the applicant carried out the crime or completed serving their sentence.
- The nature of the job
An employer can still reject an applicant with a criminal record if they can show that the interviewee’s conviction can have a negative impact on their ability to perform the job. For example, banks may be worried about hiring an applicant with a counterfeiting conviction.
Once the application process is complete and the employer decides to deny the applicant employment, they must provide them a written notice of the rejection choice. This written notice should include:
- A clarification of the disqualifying conviction that led to the employer’s decision.
- A copy of the conviction history reports the employer used i.e. if they used one.
- An explanation that the candidate has the right to react to the disqualifying conviction with suitable evidence before a final decision is made and the deadline (which must be at the minimum 5 days from the date the candidate received the notice) they are meant to respond on.
The employer must regard all the information given by the interviewee before they come to final the decision. If the employer’s final choice is not to hire the applicant, they have to provide a final written notice of this choice. The notice should specify the steps a candidate should take to contest the final decision if the employer has one and inform them of their right to file a complaint with the California Department of Housing.
California Rules On Background Checks
California background check rules emulate those of the federal Fair Credit Reporting Act, ordering that employers receive written consent from their applicants before conducting a background check through a third party. If the employer chooses to reject the candidate based on the information found in the report. They must send them notice of this before making the decision and offer the opportunity to discuss the report before any decisions are made.
California also has a 7-year rule that mandates that background check reports should not show convictions older than seven years, with very few exceptions.
Expunge For Your Criminal Records
If you feel you have been discriminated against for having a criminal record. A criminal defense attorney can help ensure you exercise your right to employment. Plus, our team can also help you expunge your criminal to make it easier for you to find favorable job opportunities. We will review your convictions and help you figure out if you are eligible for expungement, and aid you through the process of getting your prior convictions dismissed.
How Do I Expunge a Conviction?
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Seppi Esfandi is an Expert Attorney who has over 22 years of practice defending a variety of cases.