Assembly Bill 218 (AB 218) went into effect July 1, 2014, and prohibits public agencies from using criminal convictions to evaluate a job applicant during the hiring process before the agency has determined that the applicant meets the minimum qualifications for the position.  Public agencies should, therefore, review their job applications and hiring practices to ensure they comply with the new law’s requirements.

AB 218 is codified as Labor Code section 432.9.  This section prohibits state and local agencies from asking a job candidate to disclose information about his/her conviction history until the agency has determined that the applicant meets the minimum qualifications stated in the job posting.  Once an agency has determined that a candidate meets the minimum qualifications, it can then inquire into these matters.  This prohibition does not apply to those positions where state law requires background checks to be conducted (e.g., police officers, public defenders, child care providers, etc.).  It also does not apply to any position within a criminal justice agency as defined in Penal Code section 13101 or to individuals working for a criminal justice agency on a contract or loan basis.

Public agencies should revise their employment applications to remove or limit questions regarding criminal convictions and develop a process for making this inquiry once it has been determined that an applicant meets the minimum qualifications.  Additionally, it should be noted that once agencies are able to solicit this information, the inquiries must still conform to the requirements of Labor Code sections 432.7 and 432.8.  These statutes prohibit all employers (public and private) from inquiring about arrests that did not result in a conviction or sealed/expunged convictions, as well as minor misdemeanor marijuana possession convictions over two years old.

For more information, please contact Alexis K. Stevens at astevens@somachlaw.com.

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