Facing an arrest and a criminal conviction is a traumatizing experience. However, the consequences of your conviction will go beyond spending time in jail. A criminal conviction enters your record and remains there until you make the relevant efforts to expunge it or have it sealed. Criminal convictions are public records.
This means that individuals who perform a background check on you can find the conviction and use it against you. This includes potential and current employers, landlords, and professional licensing boards. Unfortunately, a criminal conviction can impact your career and livelihood. California law has a complex approach to using arrest and conviction records.
Different laws ensure the fair treatment of individuals with criminal histories. They include the Fair Employment and Housing Act (FEHA), the Ban-the-Box Law, and individualized assessment. The laws enlighten employers on fair practices while protecting job seekers from discrimination.
The Use of Arrests and Criminal Convictions by Employers in California
A criminal conviction in California enters your record. The criminal records are open to public access. This means that individuals who look into your background can find the conviction. Criminal convictions can impact multiple aspects of your life. This includes job applications, career opportunities, and personal life,
The impact of a conviction on your employment opportunities depends on these factors:
- The nature and severity of your conviction
- The time that has passed between the conviction and the job application
- State and federal laws that protect job applicants from discrimination
- The type of employment you seek
California has enacted laws designed to protect job applicants from discrimination. The state laws go beyond federal protections. These laws provide safeguards to promote fairness in the hiring process. Additionally, they prevent discrimination against individuals with past criminal histories. These laws include:
California Fair Employment and Housing Act (FEHA)
The Fair Employment and Housing Act governs employment discrimination in California. FEHA prohibits discrimination based on various protected characteristics. They include race, gender, sexual orientation, and disability. Additionally, FEHA limits the use of criminal history in employment decisions.
Under this act, it is illegal for employers to make employment decisions based on an individual’s arrest record or conviction. However, there is an exception when the offense is related to the job or poses a direct threat to the safety and well-being of others. FEHA prohibits employers from discriminating against job applicants. This applies in cases where an arrest does not end in a conviction.
Additionally, employers may not use a conviction record unless there is a link between the record and job duties. California Assembly Bill 1008 amended FEHA,. The new law makes the use of criminal history in job applications precise. Before using your conviction to deny you a job, an employer must prove its relevance to your job.
Before making an employment decision, the employer must consider the nature of the conviction.
California Labor Code Section 432.7
California Labor Code Section 432.7 limits an employer's use of criminal records in hiring decisions. This law prohibits employers from asking about an applicant's criminal history before hiring. Employers can inquire about convictions, but the law limits the use of the information you provide. They include:
- Employers cannot use an arrest record that did not result in a conviction. The record cannot affect your employment if you face an arrest and the court dismisses your case.
- Employers can ask about convictions. However, they must consider the conviction's age. Additionally, crime's relationship to the job is a critical factor.
- If a job applicant has a criminal conviction, the employer must provide an opportunity for the applicant to explain. This includes presenting evidence of rehabilitation. Additionally, an applicant can explain the circumstances of the offense.
Employers must also adhere to California's ban-the-box law. This law prevents employers from asking about criminal history on job applications. Employers must give a conditional job offer to the applicant before conducting a criminal background check.
The California Consumer Credit Reporting Agencies Act (CCRAA)
California's CCRAA governs how employers use criminal background checks in employment decisions. This law imposes strict requirements on employers using background checks. Employers must inform applicants and employees if they intend to use a background check when hiring. This allows the applicants or employees to consent to using their records.
If an employer decides not to hire an individual based on the information in the background check, they must notify the applicant. This includes a copy of the report used in the decision. After receiving the notice, your employer must give you reasonable time to respond.
The CCRAA also ensures that background checks in employment decisions are accurate. If you believe the employer has wrong records against you, you can present evidence showing the correct records.
California Consumer Privacy Act (CCPA)
The CCPA impacts how employers handle personal data. This includes criminal history information and other records. It gives California residents greater control over their data collected by employers.
Job applicants can request information about the use of their criminal records. Employers must follow this law by implementing strict data privacy practices. The privacy laws address the collection and use of criminal history data.
Employers can follow these practices to avoid legal pitfalls:
- Adopt a clear policy. Employers should create and maintain a clear policy on using criminal background checks. The policy should outline when and how background checks are conducted. Additionally, it should emphasize that only relevant convictions will affect hiring.
- Ensure job relevance. Employers should evaluate the relationship between your criminal history and the job you seek. They cannot use the record against you if the relationship does not exist.
- Provide an opportunity for explanation. If an employer intends to use a criminal record to deny employment, they must allow the applicant to explain themselves.
Exception and Limitation to Protection Against Employment Discrimination
California law imposes strict regulations on using arrest and conviction records. However, there are limitations and exceptions to these protections. They include:
Jobs that Require Licensing
Some jobs require a practice license. Licensing bodies perform a background check on license applicants as a safety precaution. These jobs involve working with vulnerable groups like children, the elderly, and sick people.
In this case, an employer can use your prior arrests and convictions against you in the job selection. If you have an arrest or conviction for crimes like child abuse and domestic violence, an employer can deny you a job working with children.
Additionally, an employer can deny you a job if you have a prior conviction for theft or embezzlement. This is considered reasonable if the job requires financial management.
Law Enforcement and Government Jobs
Your criminal history is critical when hiring for government jobs. This includes jobs requiring high security, like law enforcement. If you have an arrest or conviction for some offenses, the employer can deny you the job without legal repercussions.
Direct Threat to Safety
An employer can legally deny you a job opportunity if you pose a threat to the safety of others. The employer can gauge your danger level by looking into your criminal history. If you have convictions for violent offenses, an employer can deny you a job opportunity.
Expungement and Clean Slate Program in California
California law regulates employers' use of criminal records. Additionally, it provides people with criminal records with a way to avoid the collateral consequences. This is through the expungement and clean slate programs.
Expungement
An expungement is a legal proceeding requesting the court to dismiss your conviction. An expungement allows you to withdraw your guilty or no-contest plea. You will enter a not-guilty plea before the court dismisses your conviction. Expunging your conviction allows you to answer no when asked about prior convictions.
Not all criminal convictions can undergo an expungement. You are eligible for an expungement if you meet the following criteria:
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You Face Charges for a Misdemeanor and Some Felonies
You can expunge misdemeanor convictions. However, for felonies, you should not have faced a conviction for serious or violent felonies. You cannot expunge a conviction for crimes like rape, murder, and sodomy.
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You have Completed your Probation.
The court can sentence you to probation instead of incarceration for your crime. Depending on the nature of your charges, you can face felony or misdemeanor probation. Before filing an expungement petition, you must complete your probation. You must have served the full probation term and followed all probation conditions.
Probation can last for up to five years. This delays your ability to expunge the conviction. You can speed up your eligibility by seeking an early probation termination. The court can terminate your probation sentence before you serve the full term. However, you must have served a certain period of probation.
This includes 18 months of the sentence for felony probation before a termination. Flor defendants on misdemeanor probation must serve up to 12 months. Additionally, you must have a good probation record.
The court will request a probation report from your probation officer. From the report, the judge can determine your probation performance.
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You Must Not Have Pending Charges
You should not have pending charges when you file a petition to expunge your conviction. This means you should not face charges or serve a sentence for another offense.
The process of expunging your criminal conviction takes the following steps:
- Petition the Court. If you seek to expunge your conviction, you must file a petition for expungement with the court.
- Court Hearing. Sometimes, the court will hold a hearing to determine whether to grant the petition. Before attending your expungement hearing, you can contact the district attorney. This notifies them of your case. Additionally, you can request them to support your motion. At this hearing, you can prove to the court that your expungement is in the best interests of justice.
- Approval/Denial. If the court grants your petition, the judge will dismiss the conviction. If denied, you can appeal. You can do this after reviewing and correcting the reasons for the denial. Alternatively, you can file other motions for post-conviction relief.
Filing for expungement helps you avoid discrimination by employers. You can truthfully answer no when asked whether you have prior convictions. Additionally, California prohibits expunged convictions from being used to discriminate against job seekers.
Clean Slate Program
The clean slate program is another way to avoid the consequences of your conviction. This program automates the expungement process for defendants with convictions for minor offenses. The key features of the clean slate program include:
- Automatic relief. Under California law, certain convictions are automatically cleared from criminal records. With the automatic relief, you will not need to take legal action. This includes some low-level felonies and misdemeanors. However, you must have served your sentence for the offense and completed the probation terms.
- Pre-2021 Changes. Before the Clean Slate program, individuals had to petition the court to seek relief. This was a time-consuming and complicated process.
- Post-2021 Changes. California courts must clear certain felony convictions after completing your sentence. This is part of an effort to streamline the process and give individuals a "second chance."
If you face charges for minor offenses, you can explore the clean slate program. However, you must complete your sentence before enjoying the relief. This means serving your jail sentence, paying fines, and completing probation.
Find a Competent Criminal Defense Attorney Near Me
Most employers will perform a background check on you before offering employment. An employer can use your criminal convictions to discriminate against you. Fortunately, California protects job applicants from this type of discrimination. This is by passing laws that dictate when and how employers can use criminal records.
Employers who violate the protections can face legal repercussions. If you have a criminal record, you will require the guidance of a skilled criminal attorney. Your lawyer will guide you through the proper legal procedures to avoid the disabilities of your conviction. Additionally, they can guide you through filing a claim with FEHA.
At Long Beach Criminal Attorney, we understand the impact of a criminal conviction on employment. We offer legal guidance for clients facing discrimination in Long Beach, CA. Contact us today at 562-308-7807 to discuss your case.