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New Law Requires Delay for Employers Seeking Job Applicants’ Criminal History

The second installment of our five-week series focusing on new laws impacting special districts in 2014 reviews Assembly Bill 218. Taking effect on July 1, 2014, this new law creates restrictions on when employers can verify criminal convictions of potential employees. CSDA thanks Gage Dungy and Emily Muscatell of Liebert Cassidy Whitmore for their assistance with this article.

Assembly Bill 218 (Dickinson) makes significant changes to special districts' hiring processes. Special districts should closely review their current practices related to employment applications to ensure compliance by the time the new law takes effect on July 1.

AB 218 prohibits any state or local agency, including special districts, from asking a job applicant to disclose criminal convictions on the initial employment application. Instead, the agency will have to wait until after it has determined that the applicant meets the minimum employment qualifications for the position before requesting the applicant to disclose any criminal convictions.

However, AB 218 does not prohibit public agencies from inquiring about criminal conviction information later in the hiring process,  rather, it requires the public agency to refrain from doing so until it has determined that the applicant is qualified for the position.

It should be noted that AB 218 exempts positions that are required by state law to have background checks conducted, such as peace officers. In addition, the new law does not apply to any position with a criminal justice agency or to any employee working for a criminal justice agency on a contract or loan basis.

Local agencies may need to change hard copy and/or online application forms to remove questions seeking this information for impacted positions. In addition, supplemental questionnaires requesting criminal conviction information are also no longer permitted as part of the initial hiring phase.
The passage of AB 218 follows a nationwide movement to "ban the box" in an attempt to eliminate any practices of automatically disqualifying convicted criminals from employment by asking questions concerning criminal convictions on the initial job application. Advocates of "ban the box" laws are concerned that such automatic disqualification of convicted criminals may create a disparate impact on minorities. In addition, supporters of "ban the box" legislation have noted that many qualified applications are being rejected from job opportunities simply because of old or minor infractions irrelevant to the position they are seeking.

In 1998, Hawaii became the first state in the U.S. to adopt a "ban the box" law. Since then, many states, counties, and cities, including Massachusetts, Minnesota, and Seattle, have also enacted "ban the box" laws. In California, nine cities and counties adopted "ban the box" prohibitions prior to AB 218 being passed. In addition, many private companies and individual agencies have also started to remove the criminal conviction "box" from job applications.

AB 218 adds Section 432.9 to the California Labor Code.





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