Additional Restrictions on Employer’s Use of Criminal History Checks
March 10 2014
Last month this blog reported on an ordinance passed by the San Francisco Board of Supervisors that would ban the use of criminal history checkboxes from employment applications for employers in San Francisco. Employers statewide should note, however, that a new law became effective January 1, 2014 that adds further limitations on what information an employer can obtain concerning an applicant’s criminal history on a job application. Governor Brown signed Senate Bill 530 which amended section 432.7 of the Labor Code. Prior to this amendment, that section prohibited public and private employers from requesting potential hires to disclose (or from considering as a factor for purposes of determining whether to hire) an applicant’s criminal history that: (1) did not result in a conviction; or (2) was related to a referral to a pre/post trial diversion program (i.e., certain drug offenses). Under this new law, employers are now prohibited from inquiring into any conviction that has been judicially dismissed, sealed and/or expunged.
Employers found to have violated this section may be liable to the potential hire for a monetary penalty. They may also be subject to paying the reasonable attorney’s fees of any potential hire who brings an action under this section.
Given this change, employers are cautioned that they should revisit their hiring materials, especially job applications, to determine whether they remain in conformity with this new law. Employers may want to seek the assistance of legal counsel to see if they wording on their applications regarding criminal history satisfies the new requirements of Labor Code section 432.7.