People with criminal convictions in their past face many challenges as they seek to rebuild their lives and return to participating fully in society. One of the bigger challenges they face is discrimination in the job application process. Fortunately, the State of California enacted the Fair Chance Act in 2018, which significantly restricts what employers can do in terms of asking about your criminal history. If you’ve been removed from an employment applicant pool because of your past conviction, that employer may have broken the law. Contact an experienced Oakland employment attorney to learn more and find out what you can do.
The Fair Chance Act is a kind of “Ban the Box” law. The “box” in question is the one next to a job application question asking you about whether or not you have a criminal history. The Fair Chance Act bans this kind of question, requiring employers to forego seeking applicants’ criminal histories prior to extending a job offer.
Along the way, the Department of Fair Employment and Housing (DFEH) has enacted various regulations that implement the Fair Chance Act, including some that were composed only recently and went into effect October 1, 2020.
Those recent regulations accomplished several things for people with past convictions who are seeking employment in this state. For one thing, the new regulations expand who qualifies as a job “applicant” under the Fair Chance Act. Under the expanded definition, even if you started work before your employer’s review of your criminal history, you still qualify as an applicant for purposes of the Fair Chance Act’s protections related to criminal history disclosures.
Your employer isn’t entitled to all your criminal history info
It’s also useful to look at what you do – and don’t – have to divulge even after an employer has made a conditional offer of employment. A conditional job offer opens the door for the employer to seek information about your past criminal convictions that are a matter of public record. That employer is not, however, entitled to information related to an arrest if that arrest ended in something other than a conviction. If your arrest resulted in your being referred to a pretrial or post-trial diversion program, that information is something to which the employer is not entitled.
Additionally, there is certain actual conviction information to which the employer isn’t entitled. According to the DFEH’s recent FAQ document, if the court placed record of your conviction under court seal, or if your conviction was “dismissed, expunged or statutorily eradicated pursuant to law,” then your employer isn’t entitled to that, either.
Some employers, of course, are required by law to do criminal background checks. The new regulations make it clear that, even though they can inquire about criminal history prior to extending an offer of employment, it is still possible for these employers to engage in conduct that violates the Fair Chance Act. These employers can look into conviction histories, but cannot pursue other criminal history documents, like arrest records (unless the employer has a specific statutory green-light to do so.)
It’s important to remember that you only have a limited time to take legal action if a prospective employer violated the law during your application process. The law says that you must file a complaint with the DFEH within three years. So, if you’ve lost out on a potential job due to your past criminal conviction, it is worth your while to talk to counsel and find out what you can do. For useful advice and strong advocacy in your job discrimination case, talk to the Law Offices of Stephen M. Fuerch. Attorney Fuerch is a knowledgeable Oakland employment attorney whose extensive experience can help you get successful results. To learn more, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.