Employment Law Attorney Explains Criminal Record Discrimination

Can I be discriminated against because of my criminal record?

With the spotlight today on rehabilitation programs in prison, and programs to ease the transition back into society, it is no wonder that the law is evolving to protect those who have been previously in trouble with the law. Those with criminal records already face an uphill battle if they are applying for jobs. Surveys suggest that at least half of employers require background checks before officially hiring an employee. To battle the severe disadvantage that this creates for those with a criminal record, California is among many states to put in place legal protections.

Generally, employers are allowed to conduct background checks and obtain criminal records. What they are allowed to do with that information, however, is regulated by Title VII (a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion), and California labor laws. This means that an employer cannot outright refuse to hire an applicant, or take adverse actions towards an employee (termination, demotion, etc.), simply because the employee has a criminal record. Employers who do consider an applicant’s/employee’s criminal record to make an employment decision must prove that it is relevant to the job, or is a “business necessity.”

To comply with Title VII, an employer must ensure that he or she does not use the background check in a discriminatory way. For example, an employer cannot refuse to hire only women with a criminal background, but not men. However, discrimination does not always come at face value. For example, incarceration rates for some races are significantly higher than those in the general population. A workplace policy that allows an employer to refuse to hire an applicant with a criminal background check can violate discriminatory laws, even inadvertently, if those persons that are not hired tend to be of a certain race. So, although the employer’s policy is neutral on its face, it may ultimately have a discriminatory impact.

California labor laws also offer protection. An employer cannot inquire about an arrest that did not result in a conviction. Even more so, the employer cannot take adverse action against the employee regarding an arrest that did not result in a conviction, unless the employee/applicant is out of jail but pending trial (i.e., if the applicant is out on bail). Moreover, an applicant’s criminal record should not report a conviction that is more than seven years old. That means an employer cannot consider that information to make an adverse employment decision, unless they meet certain standards, as set forth below. Employers in California also cannot inquire about marijuana convictions that are more than two years old, or criminal records that have been expunged, sealed or dismissed. In fact, Senate Bill No. 530 (which went into effect on January 1, 2014) amended California Labor Code 432.7 to explicitly prohibit employers from asking about and/or using information from convictions that have been judicially dimissed or ordered sealed.

However, employers do have rights. They can request a criminal record if:

  1. the employer is required by law to obtain the information;
  2. the job requires the employee to carry a firearm during their employment;
  3. the employer is prohibited by law from hiring the applicant; or
  4. the employee convicted of the crime is prohibited by law from holding the job position the employee wants, regardless of whether the record has been dismissed, expunged, or ordered sealed.

If you believe that your employer is unfairly discriminating against you based on your criminal record, you should consult an employment law attorney to learn your rights.

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