October 20th, 2016 | Debbie Lamb, Sterling Talent Solutions
California Bans Employers from Asking for Juvenile Criminal Records
If you are applying for a job in California, you should be aware that there are many laws and regulations protecting personal and criminal history under both federal and state laws. California employment background checks are performed differently than in the other 49 states. Along with the Fair Credit Reporting Act (FCRA), which regulates the background screening industry, employers in California must comply with other unique regulations or risk up to $10,000 in penalties. A new amendment to the California Labor Code was signed by Governor Jerry Brown in late September. This amendment, A. B. 1843, prohibits employers from considering certain juvenile records for employment purposes.
Current California Labor Law
The California labor law code is already strict in regards to criminal background check regulations, but the A.B. 1843 amendment to the code made it even more stringent. The current labor code makes it unlawful for a public or private sector employer to consider criminal records concerning:
- An arrest or detention that did not result in a conviction
- A referral in any pre-trail or post trial diversion program
- A conviction which was judicially dismissed or ordered sealed
However, an employer can ask an applicant or employee about an arrest for which the applicant is out on bail or is pending trial. The exception to the labor rules above pertains to certain health care facilities. Earlier in 2016, the California Department of Fair Employment and Housing (DFEH) announced proposed regulations pertaining to the review of criminal history in employment decisions. These new rules put stronger limitations on the use of criminal history in employment background checks. Employers in California will have to focus on each candidate’s individual qualifications for the position to prevent racial, criminal and disability discrimination.
Protection of Juvenile Criminal Records
California Law Code Amendment A.B. 1843 amends the current labor law to include juvenile criminal history. This information is considered “off limits” and prohibits employers from asking about and considering information related to “an arrest, detention, process, diversion, supervision, adjudication or court disposition” that occurred under juvenile court jurisdiction.
Health care facilities are barred from asking about juvenile offenses history unless the information concerns a final ruling by a juvenile court in which the applicant was found to have committed a felony or misdemeanor offense of the Health and Safety Code in the five years before the application for employment. This also applies to offense history that is sealed by the court. If the health care facility seeks disclosure of the permissible juvenile offense history, the facility must provide the applicant with a list that describes the offenses for which disclosure is sought.
Review Criminal Background Screening Requirements
The juvenile criminal records law will go into effect on January 1, 2016. Before that time, California employers that use criminal background checks to screen their candidates should consider reviewing and updating their criminal background screening policies to make sure that they will comply with the “off limits” information requests. In fact, it might be a good idea for HR departments and pre-employment screening companies to make sure they are up-to-date on any proposed amendments to the California Fair Employment and Housing Act and Fair Credit Reporting Act. Also, local and state “ban the box” laws will also need to be taken into consideration.
You can find insights and critical information on the most common types of employment background checks, compliance tips and employment and educational verification processes by clicking here.
Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.