Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 27, 2016, California Governor Jerry Brown signed Assembly Bill No. 1843, which amends the California Labor Code to prohibit employers from considering certain juvenile records for employment purposes. The amendment is effective January 1, 2017.
Subject to certain exceptions, the Labor Code currently makes it unlawful for a private or public sector employer to consider information concerning:
- an arrest or detention that did not result in a conviction;
- a referral to or participation in, any pretrial or post-trial diversion program; and
- a conviction that has been judicially dismissed or ordered sealed.
The Labor Code does not, however, prohibit employers from asking an applicant or employee about an arrest for which the applicant or employee is out on bail or on recognizance pending trial.
Moreover, these provisions do not bar certain health care facilities, as defined in Section 1250 of the Health and Safety Code, from asking applicants to disclose an arrest under any section specified in Section 290 of the Penal Code (for those positions with regular access to patients) or an arrest under any section specified in Section 11590 of the Health and Safety Code (for those positions with access to drugs and medication).
AB 1843 amends the Labor Code to broaden the types of “off limits” information that employers may not consider by prohibiting employers from inquiring about and considering information concerning or related to “an arrest, detention, process, diversion, supervision, adjudication, or court disposition” that occurred while the applicant or employee was subject to the process and jurisdiction of a juvenile court (“juvenile offense history”). The bill also excludes from the Labor Code’s definition of “conviction” an adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of a juvenile court.
Health care facilities will now be barred from inquiring into an applicant’s juvenile offense history unless the information concerns an adjudication by a juvenile court in which the applicant was found to have committed a felony or a misdemeanor offense under Section 290 of the Penal Code or Section 11590 of the Health and Safety Code in the five years before the application for employment. However, the health care facility may not inquire about an applicant’s juvenile offense history that has been sealed by a juvenile court. If the health care facility seeks disclosure of permissible juvenile offense history, the facility must provide the applicant with a list that describes the offenses for which disclosure is sought.
California employers that use or are considering using criminal records to screen applicants or employees should consider reviewing their policies and practices to ensure that “off-limits” information is not being requested or considered. California employers also should be mindful of pending, proposed amendments to the California Fair Employment and Housing Act, which, if adopted, will change the landscape for California employers’ background screening programs.1
Moreover, all employers, including nationwide employers, may want to conduct a broader (and privileged) assessment of their pre-employment screening practices to strengthen their compliance with federal, state and local laws, including the Fair Credit Reporting Act2 and state and local so-called “ban the box” laws.3
1 See Jennifer Mora, California Fair Employment & Housing Council Considers Proposed (and Recently Amended) Rules to Restrict Employer Use of Criminal History, Littler Insight (Aug. 4, 2016).
2 See Jennifer Mora, Federal Courts Increase Scrutiny of Employer Compliance with the FCRA’s Adverse Action Requirements, Littler Insight (Jan. 4, 2016).
3 See Jennifer Mora, Philip Gordon and Matthew Curtin, Connecticut Becomes the Third Jurisdiction in 2016 to “Ban the Box”, Littler Insight (Jun. 3, 2016); Jennifer Mora, Vermont Joins the Ranks of Cities and States that “Ban the Box,” Littler Insight (May 10, 2016); Philip Gordon and Jennifer Mora, Austin Becomes the First City in Texas to “Ban the Box”, Littler Insight (Mar. 25, 2016).