Existing Laws Regarding Criminal Background Checks

In California, existing regulations prohibit employers of five or more workers from:

• Including any questions regarding criminal history on any application for employment;
• Making inquiries, including a criminal background check on any job applicant before issuing a conditional offer of employment; or
• Considering certain types of criminal history, such as sealed convictions in making employment decisions.

Under the state’s current law, the Department of Justice runs monthly reviews within the criminal record databases to find documents eligible for automatic relief. For example, records are eligible for automotive relief if an individual was sentenced to probation, completed the terms without revocation, was convicted of misdemeanors or infractions, and met the criteria.

Expansion Under SB 731

SB 731 will take effect on July 1, 2023, and immediately expand automatic record relief to convictions for most felonies occurring on or after January 1, 2005. In addition, individuals must have completed the terms of their sentence, and four years must have passed without the defendant facing convictions for new felonies.

There are exceptions for serious and violent felonies. Such felonies include murder, kidnapping, assault with a deadly weapon, robbery, and more. It also does not apply to registered sex offenders or release individuals from the terms and conditions of criminal protective orders.

How Does This Affect Employers?

Though this new law does not amend any existing Labor or Government codes, it will significantly impact the hiring process resulting in employers having less access to certain criminal records due to the sealing of many criminal offenses.

With this change, offenses that may have led to denied applications in the past may not lead to immediate denials now and, in some cases, must update their hiring policies to reflect these changes.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

The post California’s Newly Expanded Sealing of Conviction Records Explained appeared first on JDP.

Senator Bradford introduced SB 1262 in response to an Appellate Court’s 2021 decision in the case of All of or None v. Hamrick. This case prohibited California county courts from including personal identifiers such as dates of birth or driver’s license numbers in connection to criminal defendants in court records.

Personal identifiers are critical for background check providers to help accurately verify whether records connect to specific individuals. This accuracy is crucial to comply with federal, state, and Fair Credit Reporting Act (FCRA) laws.

California’s legislature passed SB 1262 to resolve the difficulties caused by these unprecedented changes addressing the advocacy of the business community, background check providers, and others who felt negatively impacted by the Appellate Court’s decision. The bill would add only one sentence to California Government Code § 69842 and change one clause.

Under Section 69842, the clerk of the Superior Court must maintain indexes that permit ready reference to actions and proceedings filed with the court. Under the changes made by SB 1262, the law would provide that “[p]ublicly accessible electronic indexes of defendants in criminal cases shall permit searches and filtering of results based on a defendant’s driver’s license number or date of birth, or both.”

Though the changes to state law would be minimal, the impact is significant. It would ensure background check companies that already have access to an individual’s date of birth and driver’s license number can use the court’s electronic indexes to connect a record to the individual. Under the effects of the decision in Hamrick, making these confirmations has become complicated and, in some cases, impossible.

Despite the unanimous decision by the State Senate and overwhelming passage through the assembly, the governor has decided to veto the bill increasing background screening difficulties and delays. Employers and others should ensure the right provider to run their background screenings to help determine the best options for vetting individuals in light of these difficulties.

Disclaimer:

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.

The post Governor’s Veto of SB 1262 Means California’s Background Check Difficulties Aren’t Over Yet appeared first on JDP.