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California Law Restricts Employers’ Use of Employees’ Criminal Records

hipaa2On October 10, 2013, California Governor Jerry Brown signed into law legislation that prohibits employers from asking about or using information about job applicants’ expunged criminal records.  These new restrictions are scheduled to take effect January 1, 2014.

Currently in California, employers may not ask job applicants if they have been arrested or detained – unless they were convicted or participated in pretrial / post-trial diversion programs.    Employers at health facilities may require that applicants for positions with regular access to patients or to drugs and medication disclose certain arrests as required by law.   Otherwise, employers are also prohibited from seeking out this information from any other source, or considering it when hiring, firing, promoting, or making other employment decisions.

Effective January 1, 2014, employers will also be prohibited from asking or using information about any convictions that have been “judicially dismissed or ordered sealed.”

There are a few exceptions.  The new law now allows employers to ask or use information about convictions in four instances that are job-related, including where: (1) the employer is required by law to obtain information regarding a conviction of an applicant; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) 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; and (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

The recoverable damages and penalties for violations of the law remain the same: actual damages of no less than $200, plus costs, and reasonable attorneys’ fees.  Employers found to have intentionally violated the law may also be found guilty of a misdemeanor punishable by a fine not to exceed $500, and subject to treble damages of no less than $500.


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