Navigating California Applicant Criminal History Requests and Prohibitions

Pre-Offer Inquiries        Background Check Results

Entering into 2019, California employers have already been hit with laws prohibiting their ability to obtain criminal history information of applicants prior to extending them an offer. Additionally, once the offer is made and results return in which the employer wants to deny the employment of that applicant, employers are now required to engage administrative actions prior to the denial. To assist California employers with understanding and successfully navigating this minefield, we have created materials to hopefully provide clarity and the ability to implement their related processes appropriately (and avoid costly litigation). 

The Laws

Beginning January 1, 2019, SB 1412  specifies that employers are not prohibited from asking an applicant about, or seeking from any source information regarding, a particular conviction of the applicant if:

1. employers are required to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation;
2. the applicant would be required to possess or use a firearm in the course of his or her employment;
3. an individual with that particular conviction is prohibited by law from holding the position sought, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; or
4. employers are prohibited by law from hiring an applicant who has that particular conviction, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.

Pursuant to Section 432.7 of the Labor Code, an employer, whether a public agency or private individual or corporation, shall not 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, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code. An employer also shall not seek seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding 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, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code. ​

*“particular conviction” means a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.

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