California Criminal Record Reporting Changes For Employers in 2021

A proposed bill may make it easier for those arrested and convicted to find work and housing in California starting in January of 2021. AB 2978, introduced in February of 2020, would require the Department of Justice to review criminal files and identify people who may be eligible for record relief if the arrest or conviction happened on or after January 1, 1973.

Currently, people with low-level convictions in California who have completed probation, paid fines, and are not presently charged with a crime, can have misdemeanors expunged from their records. Under the existing law, the DOJ reviews criminal files and identifies people who are eligible for record relief if the arrest or conviction. The new bill would simplify that process and expunge the record automatically. It also applies to arrests and convictions such as DUI, disorderly conduct and domestic violence, that were not prosecuted.

What You Need to Know About Clean Slate Legislation

Bills like the one proposed in California are known as “Clean Slate” or “Second Chance” legislation. Clean slate legislation is another area of employment law that works to reduce the barrier to entry for those with criminal histories. Expungement, or the process for sealing arrest and conviction records, exists across the country, but many ex-offenders don’t pursue it because they are unsure of how to proceed. The latest bills focus more on simplifying the process so that records are automatically expunged.

Can we still do background checks in California? Yes. Under the new law, nearly 50 years of low-level criminal records affecting nearly two million residents of California would be invisible to employers and property sellers (but still be accessed by law enforcement and the court system).

How will this impact background check reporting in other states? The Virginia House of Delegates passed a bill in September of 2020 called the “Second Chance Law” that will automatically seal criminal records for more than 150 offenses, making it one of the broadest automated sealing proposals in the country. “Clean Slate” legislation designed to expand expungement options for people who have gone several years without committing another offense, including low-level marijuana offenses, passed the Michigan Legislature with wide bipartisan support in September. In Nevada, Assembly Bill 192 (AB 192) established a process by which individuals can petition to have their criminal records sealed if their conviction was for an offense that was later decriminalized. The Nevada legislation also streamlines expungement by providing individuals with a simple form to submit to the court. Many other states, including California, have similar bills under review.

Should we change our processes? Outside of revising your application questions to exclude inquiries about charges that have been expunged or decriminalized, dealing with sealed or expunged records can be tricky for employers conducting background screens because of differences in state laws and the presence of records tagged for sealing or expungement online or in databases that are then scooped up in bulk by consumer reporting agencies. There have been a number of lawsuits filed against employers for making employment decisions based on sealed or expunged records.

With clean slate legislation being passed or considered in multiple states, your background check vendor partner must adhere to the state legislation when screening applicants. Additionally, this is impactful when we consider the number of states that are legalizing medical or recreational marijuana use - meaning that positive drug tests may not disqualify an applicant - so that a previous charge for possession or marijuana use will not prohibit someone from being considered for a job.

From an employer perspective, this is an opportunity to grow their workforce and expand access to job training and education for so many people to a broader pool of individuals who would have previously not been considered for employment due to a criminal record. Employers should ensure they are using a reputable background screening vendor and to speak with that vendor about the safeguards it uses to ensure that positive criminal records results are cross-referenced with county-specific records to see if there are any updates as to those convictions being sealed or expunged. Third-party vendors should not only run the search but verify the results, giving the employer another layer of protection.