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Considering a Criminal Record

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Everybody makes mistake in their lives. The degree of these mistakes can vary wildly, but part of living involves learning and moving forward. Unfortunately, many people who have criminal records find that it is incredibly difficult to move forward, especially when it comes to finding employment. We are often asked questions about what impact your criminal history can legally have on your employment prospects. The answer to this question is complex, but the bottom line is that there are federal and state legal limits on employers when it comes to criminal backgrounds.

Employers May Seek Outside Background Check

It is common for employers to seek criminal background checks conducted by outside agencies. However, employers have to strictly comply with the Federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA), which require that the employer: (1) have consent from the applicant/employee to obtain the background check; (2) inform the individual of their right to a copy of the background check results; and (3) provide notice to the employer of their numerous rights under the law. In addition, there are specific categories of information that these third party agencies are prohibited from releasing.

Prohibited Criminal-Related Information

If you worry about an old juvenile record, you were busted with pot during college, you had charges that were dropped, or you had a conviction that was deferred and then dismissed after you completed a probation program, you are protected in California.

California law prohibits employers from obtaining or considering the following categories of records in making employment decisions: (1) Juvenile records; (2) arrest records that did not result in a conviction; (3) convictions on marijuana-related offenses that are older than two years old; (4) involvement in a diversion program; or (5) records that have been sealed or expunged.

Criminal Background Question on Job Application

In 2012, the Equal Employment Opportunity Commission (EEOC) authored a publication that provided guidance for employers in the use of criminal convictions and arrest records in employment decisions. One of the key provisions of this guidance was to "ban the box". This referred to the practice of employers including a question on employment applications that compelled applicants to self-disclose their own criminal backgrounds. Banning the box has since been adopted by California, which prohibits State government agencies from asking this question on job applications. In addition, numerous local governments and private businesses have also adopted this regulation. Instead of the box on the application, employers can only ask an applicant about their criminal history after a conditional offer for employment has been made or after an in-person interview has been conducted.

New FEHC Regulation

In addition, effective July 1, 2017, a new California Fair Employment and Housing Council (FEHC) employment regulation came into effect that further limits the ability of employers to obtain and consider the criminal history of an applicant or employee. This regulation essentially prohibits the consideration of a criminal background in an employment decision, if the use of that background will result in an "adverse" or "disparate" impact on a protected class of people. These classes may include the person's race, gender, or country of origin. If there is an adverse impact, the employer has the burden to demonstrate that the criminal background consideration is both job related and consistent with a business necessity.

Contact Moss Bollinger

California and the federal government provide job applicants and employees with broad legal protections. If you believe that your criminal history has been improperly considered or that you have been discriminated against based on mistakes from the past, call us. At Moss Bollinger, we have proudly fought against the illegal acts of employers since 2008 and may be able to help you. We charge no fees up front and only receive payment if you get paid. Call us today at 800-249-1175 for a free consultation or complete our online form.

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