New Limitation On Use Of Criminal Record Discovered In Background Check Of Employee

APRIL 25, 2014

On January 1, 2014, California Labor Code section 432.7 was amended to make it illegal to ask about or use information regarding an employee’s or potential employee’s former criminal convictions when those convictions have been judicially dismissed or ordered sealed pursuant to law.  Before this amendment, it was illegal to use arrest or prosecution records that did not result in a conviction.  But, once there was a conviction, such records were fair game to use in employment decisions (so long as the use was reasonable from a business point of view and not discriminatory based on membership in a protected class).  Convictions included plea bargains and no contest pleas.  This is still true, but, if the conviction is ordered by a court to be sealed, expunged or otherwise judicially dismissed, for example, after the serving of a term of probation, it is as if the conviction did not happen (from a legal point of view) and therefore information about that former conviction cannot be used in employment decisions.  There are exceptions to this new law, however, for jobs that require persons to carry or use firearms, for jobs that cannot be filled by formerly convicted individuals, and for various governmental jobs and interests. – Adam K. Treiger