Criminal Background Checks: What Can Employers Ask You?

By San Diego Attorney on April 26, 2018

Everyone deserves a second chance at life. They deserve employment, and the opportunity to be able to pay their own bills. That was the thinking behind some of our newest legislation in California. It allows people with a criminal record to at least get their foot in the door without having to disclose the “black mark” on their record. And that, the Legislature is hoping, will give them the second chance they rightly deserve.

It is nothing new for someone on the job-hunt to see that little box on employment applications asking if he or she has a criminal record. For one out of three Californians, that little box is enough reason to walk out of the place of employment right then. When employers see that box checked, these Californians are automatically out of the running for any employment, regardless of their personal story that goes along with that check mark.

But recent legislation has changed all that. And in doing so, given new life to many jobseekers.

Ban-the-Box Legislation Passed

In October 2017, Governor Jerry Brown signed, thereby passing, the legislation known as “ban-the-box.” This new law, which went into effect on January 1, 2018, does just that. It bans employers from placing that little box on employment applications asking jobseekers if they have ever been convicted of a crime.

Assemblyman Kevin McCarty of Sacramento was the driving force behind the bill when it was first introduced. In its early stages, McCarty stated that in banning the box, California would be eliminating one of the most common barriers to employment. He also said that it would allow those who did have a criminal record to give back and become productive members of society.

Assemblyman Chris Holden of Pasadena, Assemblyman Mike Gipson of Carson, and Senator Steven Bradford of Gardena helped Assemblyman McCarty craft the bill.

While the bill certainly does sound progressive, and will give many a chance at employment that they did not have, it is not actually a new concept in California. In 2013, AB 218 was passed. That bill essentially banned the box on government applications, so anyone could apply for a government job without having to disclose a past criminal conviction.

Los Angeles also passed its own ban-the-box legislation. That legislation went into effect a year before California’s law, on January 1, 2017.

Subsequent Background Checks Still Allowed

However, it is important for jobseekers to understand that California’s new law does not prevent employers from ever asking potential employees about their criminal history.

After an applicant has been given a job offer, the employer can then ask him if he has ever been convicted of a crime. They can also perform further background checks. If the employee states that he does have a criminal record, or the employer finds out through other methods, the employer then has the right to withdraw the job offer.

But even with this caveat, employers need to be careful. According to guidelines outlined by the U.S. Equal Employment Opportunity Commission (EEOC) in 2012, if an employer’s rejection of applicants is having a disproportionate effect on people of color, the employer can be found in violation of anti-discrimination laws. On July 1, 2017, the California Department of Fair Employment and Housing enacted the same rule.

California’s Future for Those with Criminal Records

California’s hope is that people who were convicted of a crime not related to the job they are applying for will have a chance at getting that job; and that those who served their time also have a chance. Even if some people have a past conviction related to the job they are applying for, they still deserve a second chance at employment.

This new law hopes to allow everyone to apply for a job if they wish to. It is an opportunity many did not have prior to this bill, when employers would see that little box checked and turn eligible applicants away.

For those who feel they have been discriminated against for a previous conviction while applying for a job, under the new law, you can file a complaint with the California Department of Fair Employment and Housing. In addition, you can speak to a skilled San Diego criminal defense specialist at JD Law in a free consultation to discuss your legal options moving forward. Please call (760) 630-2000 to speak to us today.