• New State Law Prohibits Most Employers from Asking Job Applicants about Juvenile Criminal History or Using that Information When Making Employment Decisions
  • January 5, 2017 | Authors: Katherine A. Hren; Stephanie Beth Kantor; Jonathan S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Encino Office
  • One of the many new laws signed by Governor Brown was AB 1843 which limits what employers can ask job applicants concerning their criminal history. We explain below.
     
    Limits on Questions About Criminal History Before AB 1843
     
    For decades, California employers have been barred from inquiring into or using arrest records and even certain conviction records when deciding upon the suitability of a job applicant. That same law also bars employers from using such information when making decisions about the employee's employment after the employee is hired. AB 1843 goes even further.
     
    New Limitations on the Use of Juvenile Criminal History
     
    The new law prohibits most employers from asking a job applicant to disclose any information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of the juvenile court. Further, employers are prohibited from using this information as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program.
     
    There is a special rule for health facilities. Under the new law, health facilities are barred from inquiring into or making use of a job applicant's juvenile criminal history where the criminal file has been sealed by the juvenile court. If the record has not been sealed, a health facility may make limited inquiry into the applicant's juvenile criminal history, but only where the applicant was found by the court to have committed a felony or misdemeanor for a sexual offense or drug possession that occurred no more than five years before the applicant sought employment. A health facility seeking such disclosure of an applicant's juvenile offense history must provide the applicant with a list describing the offenses for which disclosure is sought.
     
    Next Steps for Employers
     
    Employers hiring employees in California should review the employment application form to insure that it does not ask the applicant to disclose prohibited criminal juvenile history information. Additionally, employees charged with the responsibility of screening and interviewing job applicants should be advised not to inquire into these matters.
     
    Further, employers that conduct formal background checks should be sure that the investigation agency does not look into or report back on any of the juvenile criminal history matters covered by the new law.
     
    Health facilities must narrowly tailor applicant inquiries to specifically exclude sealed records, and to only ask for juvenile felony or misdemeanor convictions for permissible offenses (sexual offenses or drug possession) that are less than five years old. This exception must be identified when asking applicants for any such disclosure.