Criminal Records and the New California Law Regarding Their Use When Found During Employment Screening

As of January 1, 2014, a new law took effect in California that deals with how past criminal records are utilized in the hiring process by employers.  Senate Bill No. 530 (SB 530) provides a new level of protection for ex-offenders who committed crimes, including felonies, when it comes to applying for a job and what employers can legally use based on the findings from an employment screening.  This new law will now prohibit an employer from asking about, seeking information about, or utilizing criminal records (convictions) that have been set aside by a judge.  If found in violation of this law, employers may face civil penalties or even misdemeanor criminal charges if it is determined that they intentionally violated it. 

Prior to this change, the labor code protected prospective employees by not allowing the use of an arrest that did not result in a conviction to be a determining factor in an employment decision.  The legislation that has recently gone in to effect will protect the applicant by not allowing the employer to utilize expunged or judicially set aside.

The new law states the following:

(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.

In keeping with the EEOC guidance that was introduced in 2012, this law from the State of California does allow for exceptions to the use of criminal records where the employer will be required by law to obtain information from expunged cases.  These instances include when the applicant is required to possess or use a firearm in the course of employment; when the conviction of a crime excludes a person from holding a particular position by law, or if an employer is prohibited by law from hiring an applicant that has been convicted of a crime.

It is very important that California companies understand and know how this law applies to their company.  Unless they fall into the limited scope of exceptions to the law, it is especially important to be up to date on how this law impacts the hiring process as hiring begins in 2014.  As noted above, civil fines may apply to those who make a mistake; however, misdemeanor charges could be brought against a company that knowingly violates SB 530 and uses criminal records inappropriately.

As the laws continue to change across the U.S., it is important to utilize an employment screening company that understands these laws, and does not provide the information to an employer from criminal records that they are not legally able to ask about or utilize in an employment decision.  Every company should not try to conduct background research themselves, but rather utilize knowledgeable professionals that can help navigate law changes, and ensure companies are up to date in their understanding of employment law.