Criminal Defense Q&A: Does California’s Ban the Box Law Stop Employers from Discriminating Against Me Because I Have an Expunged Conviction?
Question:
Can an employer deny employment after a conditional job offer based on an expunged conviction, or no charges filed after arrest? I’ve read about the new ‘ban the box’ law in California in effect as of January 2018. My understanding is that an employer cannot conduct a background check until a job offer is made. Correct? It also looks like they can’t revoke a conditional offer based on discovery of a criminal conviction that was expunged, or an arrest where charges weren’t filed. What options/remedies do I have if the employer actually does cancel the job offer in this situation? Thank you in advance.
Answer:
California’s ban-the-box law, which took effect Jan. 1, 2018, prohibits both private and government employers who have 5 employees or more from asking about, or inquiring into, an applicant’s criminal history until after he or she is extended a conditional offer. California Assembly Bill 1008.
Essentially, this ban-the-box law requires private and government employers to evaluate an applicant before considering the applicant’s criminal history.
But what happens if, after the conditional offer is extended, the prospective employer conducts a background check and discovers a criminal conviction in the applicant’s past? The law does not prevent the prospective employer from rescinding the offer upon discovering the conviction. Government Code 12952(c).
But if your conviction has been expunged, then employers are prohibited by law from asking you about it. And even if an employer discovers an expunged conviction through a background check, the employer cannot, by law, use the expunged conviction as a reason to not hire you. Labor Code 432.7(a)(1).
Still, there may be instances when an employer — out of ignorance or, perhaps, even willfully — rescinds a conditional offer upon discovering an applicant’s expunged conviction.
If you believe that an employer unlawfully discriminated against you because of your expunged conviction, one remedy available to you is to file a complaint with the California Department of Fair Employment and Housing. If the Department determines that your claim has merit, then it can litigate on your behalf to enforce the law.
However, according to a recent Department annual report, of the thousands of complaints received each year, only 1% of complaints are litigated, 21% of complaints settle, and the vast majority of complaints (78%) are dismissed or resolve in some other way. https://www.dfeh.ca.gov/about-us/annual-reports-and-statistics-2/.
If a prospective employer uses background checks during the hiring process (even if it’s at the end of the process), then one option may be to proactively disclose your expunged conviction during the job interview.
Remember: An expungement signals that you completed your sentence, that you weren’t sent to prison, and that you rehabilitated to the satisfaction of a Judge. It’s proof of the sincerity of your efforts to reform.
An expungement will also allow you to discuss your conviction, as well as the strides you’ve made since, during your job interview with confidence. And being proactive about your expungement demonstrates courage, transparency, and forthrightness, character traits that most employers appreciate.
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
