Past offenders have generally had a more challenging time finding employment because of their criminal history. For the longest time, California didn’t have a solid statute in place that protected individuals with prior criminal records from employer bias. However, California joined the list of states that expand their protections to these individuals through the Senate Bill, which amended the Labor Code. Labor Code 432.7 came into law and now prohibits public and private employers from asking job applicants specific questions about their criminal history. Jerry Brown, California’s previous Governor, also signed into law AB 1008 (“Ban the Box), which extends the same prohibition to public sector employers.
Labor Code 432.7
Under California Labor Code 432.7, employers cannot enquire about, seek or utilize particular criminal convictions set aside by federal or state law on the initial employment application. This law aims to protect specific ex-offenders from discrimination because:
- arrests are not indicative of guilt and
- arrests can lead to discrimination against racial groups and ethnic groups (certain racial groups have reported higher incidences of arrests compared to others)
Under previous laws, protection was limited to arrests that didn’t lead to a conviction. However, Labor Code 432.7 was amended to bar employers from doing the following:
- Asking applicants to provide information about an arrest that didn’t lead to a conviction
- Asking applicants about information regarding referral to a pre-trial or post-trial diversion program
- Asking about sealed, dismissed, expunged, or statutorily eradicated conviction
- Asking about an arrest, detention, or legal proceeding that occurred in juvenile court
- Asking about a non-felony marijuana possession charge which is more than two years old
These requirements apply to both public and private employers in California, but there are specific exceptions for employers in certain industries. Employers who are exempted from these requirements can inquire about an applicant’s conviction if:
- the applicant is required to possess or use a firearm during the court of his/her employment
- the employer is required by law to obtain information regarding a particular conviction
- the employee is prohibited from holding the position because of her or his particular conviction
- the employer is prohibited by law from hiring an applicant with a criminal conviction
Employers also have the burden of proving that there is a legitimate reason why the offender can’t work at the position because of his criminal conviction. Employers must use a three-part assessment to show their policy is job-related:
- The nature of the offense
- The time passed post-conviction
- The nature of the job
Once the employer completes an assessment that the criminal conviction is a disqualifying factor, they must then notify the applicant in writing of the disqualifying conviction. It’s also important to note that the employer is not at liberty to justify her or his reason for denying the applicant. Following this initial notification, the employer is also required by law to reasonably accommodate the applicant in the following:
- Notifying the applicant of their right to respond to the notice within five business days
- Allowing the applicant to include evidence to challenge the accuracy of their assessment
- Providing the applicant with an additional five business days to allow the applicant to obtain evidence
- Notifying the applicant of their right to file a complaint with the Department of Fair Employment and Housing if the employers deny the applicant based on his or her conviction
Penalties for violating Labor Code 432.7
An employer that violates the provisions of Labor Code 432.7 risks facing a civil suit and criminal penalties. Section 11140 of the California Penal Code allows an applicant to bring a civil lawsuit against an employer to recover actual damages, costs, and reasonable attorney fees. Furthermore, if an employer intentionally violates this statute, the applicant will be entitled to treble damages (or $500) and reasonable fees. An intentional violation of this statute is also a misdemeanor which is punishable by up to $500 in criminal fines.
Why you should contact Criminal Defense Hero, P.C.?
Criminal record screening continues to be the subject of many debates among California employers and regulators under federal and state laws. For past offenders, this law enables them to start their post-conviction lives without the stigma of a criminal record. If you feel an employer has intentionally violated the California Labor Code 432.7 because of your criminal records, you may be eligible to receive damages. Attorney Don Hammond has a wealth of experience in civil suits against discriminating employers. If you need legal advice about job-hunting as an ex-offender, you need to retain the services of Attorney Don Hammond to ensure an easy transition. Our Criminal Defense Hero will guide you through your post-conviction life, including starting you on the expungement process if you’re eligible. You may also want to consider going through our “What kind of a job can I get as an ex-felon” article for more information about post-conviction employability.