As usual, California tends to add protections for its residents on top of the national standard set by the federal Fair Credit Reporting Act (FCRA). However, it’s important to note that the FCRA only applies when an employer has hired an outside agency to conduct the background check. FCRA requires the following:

1) Obtain your permission.
2) Give you notice on a separate document that a report may be required.
3) That you are given the opportunity to consent
4) That you are notified if information in the report is used to make an “adverse” decision about you
5) Get your specific permission if medical information is requested.
6) Give a specific notice if your neighbors, friends, or associates will be interviewed about    your “character, general reputation, personal characteristics, or mode of living.” This is   called an “investigative consumer report” under the FCRA.

Keep in mind the information obtained in the background check usually can only go back 7 years. There are a few exceptions to this; up to 10 years for issues such as bankruptcy, or insurance policies over a certain dollar amount. Lastly, the FCRA states that there is no limit to the number of years your criminal convictions can be reported.

If the employer has decided not to hire you or promote you based on the information obtained in the background check, they must issue a “pre-adverse action notice” along with a copy of the background report before an adverse action is taken.

California law has stated that Starting Jan. 1, 1012 the employer must provide the web address and telephone number of the third party that conducted the report. If the company does not have a website, you may request that a copy of the privacy policy be mailed to you. Also, should you request a copy of the report, the company must produce it within 3 days of your request. California law also requires that the report’s cover page include:

• A notice in at least 12-point boldface type stating that the report does not guarantee the  accuracy or truthfulness of the information, but only that the information was copied from public records.
• A warning that negative information could be the result of identity theft.
• Gives notice of your rights in English and Spanish.

Interestingly enough, California has also decided that as of January 1, 1012 credit reports can only be obtained for people applying for specific job titles or functions. (CA Civil Code §1785 et seq.) Again, the employer must give notice that a credit check will be obtained, along with an explanation of why the check is allowed.

If the Employer chooses to conduct its own investigation and forgo a third party firm, the FCRA and all of its provisions do not apply. However, California law does impose a few regulations on the employer. (CA Civil Code §1785.53) For instance, the employment application should contain a box to be checked indicating that the applicant wishes to receive a copy of all public records obtained during the internal investigation.

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Discrimination against felons in California: The new California law which took effect on 1st January 2014 now provides significant protection to ex-offenders (including felons) when it comes to job searching. According to this new law, the employers are prohibited in asking or seeking details on those criminal convictions which have been either judicially set aside or ordered sealed. Thus, this newly-implemented law provides protection to job seekers with past criminal records.

Note, this legislation adds protection for those criminal convictions which have been judicially dismissed, statutorily eradicated, or expunged. However, employers may utilize a case if it is not resolved yet, on-hold, or currently pending.

This new legislation arguably extends relief to the felonies that can’t ever be reduced to the form of a misdemeanor (by law). Plus, the law may impact felonies who are typically known as “wobblers” (a wobbler can be either a felony or a misdemeanor), where the Court doesn’t grant a motion in order to reduce the felony offense into a misdemeanor prior granting the final expungement (under Penal Code Section of 17b).

This legislation adds protections to “discrimination against felons in California” on the basis of three related yet separate sections of California law including 1203.45, 1210.1, and 1203.4a of the Penal Code. As a result, the employers can’t ask/seek/utilize any prohibited information. The employers in California are expected to pay due attention to this law since an intentional violation of this legislation may result in a punishment by a fine.

Discrimination Against Felons in California: FAQs

1. Why Has This New California Law Been Implemented? 

This law has been implemented to encourage and maintain hiring practices which protect all job applicants’ state, federal, civil, and privacy rights. This law further promotes the hiring process of people having criminal records and eliminate discrimination against felons that are traditionally underemployed, though they’re motivated.

2. As a California employer, can I ask an applicant about criminal records? 

Well, it depends. You are not allowed to ask about everything of an applicant’s background and history.

3. As a California employer, what can I ask about an applicant’s criminal record?

You are allowed to ask only direct questions about certain criminal convictions. For instance, you may ask a job applicant if he/she has ever been convicted of a crime.

4. As a California employer, what can’t I ask about an applicant’s criminal record?

Under the new California law, you can’t ask about an applicant’s criminal record in the following cases.

I) Convictions which have been dismissed, expunged, sealed, or statutorily eradicated.

II) Convictions related to minor marijuana related offenses.

III) Arrests which didn’t lead to a conviction.

IV) Arrests which lead to the completion of a rehabilitation or diversion program.

Photo Credit: Shutterstock/ create jobs 51

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