California’s New Laws on Employee Criminal Backgrounds
February 19, 2014
The majority of California employers inquire into prospective and current employees’ criminal backgrounds as part of the application, retention, or promotion process. However, applicants and employees should be aware that they have certain rights set out in the California Labor Code regarding their criminal records. January 1, 2014 brought an amendment to the Labor Code, further protecting employees from certain types of inquiries, and the law will become even stricter as of July 1st of this year. Therefore, employees throughout the state should be aware of their changing rights so they may recognize and appropriately respond to unlawful inquiries.
Current California Law
In order to better understand the law relating to criminal records, you should first understand the distinction between certain terms in the criminal justice system. For example:
Arrest—happens when police or other law enforcement takes you into custody because they have probable cause to believe you have committed a crime.
Charges—following an arrest, if the prosecutor believes there is sufficient evidence to prove you committed the crime, they may issue charges, but you are still considered innocent until proven guilty in court.
Conviction—happens after you are found guilty in court, plead no contest, or plead guilty.
Expunged or sealed record—any 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 California Penal Code.
Pre-trial and Post-trial Diversion Programs—programs available to certain offenders, such as drug court or treatment programs, instead of prosecution or conviction.
Prior to 2014, California labor law prohibited both public and private employers from inquiring about any arrests that did not result in conviction, or that led to a pre-trial or post-trial diversion program. Furthermore, if the employer did, in fact, find out about such an arrest, they could not lawfully use that information to make an employment decision. As of January 1, 2014, the law changed to prevent public and private employers from inquiring about any convictions that have been dismissed, expunged, or sealed by the court. This means that employers may currently only inquire about pending charges or convictions that remain on your record.
Coming changes in the law
As of July 1, 2014, California labor law will be amended yet again to prevent any public state or local agencies from inquiring at all into an applicant or employee’s criminal history, including prior convictions. Public agencies will be prohibited from asking about convictions, arrests, charges, or other criminal background information on employment applications, orally, or in any other form of writing. Additionally, if an agency finds out about any criminal history of an applicant or employee, that information may not be used in making any employment decisions. Though this law will at first only apply to public employers, more amendments are expected to soon follow applying to all employers. There are a few exceptions, of course, for jobs that require carrying a firearm or that provide access to medication. If you believe your employer has unlawfully inquired into your arrest history or expunged convictions, you should contact the Pershing Square Law Firm as soon as possible for assistance.