Certain employers, particularly for positions that involve working with children, sensitive information, or dangerous scenarios—want to avoid hiring those with a criminal record. Unfortunately, this desire has led to the widespread adoption of the “Have you ever been convicted of a crime?” box on job applications.
This question is widely used as a tool to discriminate against those with a criminal record. However, there has been major pushback in recent years against these types of questions on initial employment applications. In fact, the nationwide legislative trend of reintegrating ex-offenders into the workforce has made these types of questions illegal for initial employment applications in some jurisdictions.
The “Ban the Box” movement seeks to open up opportunities for people with past convictions and institute fair hiring practices for those with a criminal record. Ban the Box does not look to require employers to hire applicants with criminal records; rather, advocates want employers to wait until the applicant has been selected for an interview or granted a conditional job offer before inquiring about criminal history. This will prevent employers from discriminating against those with a criminal history from the get-go and allow employers to evaluate applicants based on merit, not past misconduct.
Essentially, California’s law about criminal history questions revolves around one important concept: Arrests do not indicate guilt. In addition, arrests data alone can have discriminatory impacts because certain racial groups are subject to higher arrest rates without convictions.
Under California Labor Code 432.7, employers cannot ask about arrests that did not result in convictions: “No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law.” An employer is not allowed to obtain expunged or sealed arrest or conviction records from a source outside the employee for use in making an employment decision; if a potential employer gets ahold of this type of information and uses it against you in a hiring decision (or terminates your employment because of the prohibited arrest/conviction), you should consult an experienced attorney before taking any other action.
As of July 1, 2014, AB 218 also prohibits an employer from requesting criminal background information on the initial employment application for local and state government employees. However, this does not prevent the employer from conducting criminal background checks at its discretion; this law only changed when the employer can ask, not if. Employers are still allowed to request criminal information history on the initial employment application for law enforcement positions, positions working with the elderly or the disabled, positions working with children, and other sensitive positions.
In addition, California Labor Code 432.8 states that employers cannot ask an applicant about convictions for minor marijuana convictions that are more than two years old.