NEW LAW: California Amends Its Criminal History Inquiry Law

California Governor Jerry Brown recently signed  SB 1412 into law.  This new law, which goes into effect on January 1, 2019, amends California Labor Code section 432.7, which limits the information an employer may ask a job applicant about their criminal history.

Under the current version of California Labor Code section 432.7, employers are prohibited from asking a job applicant to disclose:

  • information concerning arrests that did not result in a conviction,
  • information concerning a referral to pretrial or posttrial diversion programs,
  • convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law, or
  • 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 juvenile court law.

Employers are not prohibited from asking an applicant about a criminal conviction if any of the following apply:

  • Where the employer is required by law to obtain information regarding a conviction of an applicant.
  • Where the applicant would be required to possess or use a firearm in the course of his or her employment.
  • Where an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
  • Where the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

The amended law changes the above-mentioned exception to the law by limiting the inquiry to

  • Where an employer is required to inquire into a particular category of criminal offenses or criminal conduct, or
  • Where the employer is prohibited from hiring an individual with a particular conviction.

“Particular conviction” means a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.

The amendment also clarifies that in such instances, the employer may inquire about convictions that have been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.