Criminal History and Illegal Employment Discrimination

Criminal HistoryWhen is it illegal for employers to consider an employees’ criminal history? Many employers in California are unaware that state law prohibits them from considering certain information related to applicants’ criminal backgrounds when they make employment decisions. Under Section 432 of the California Labor Code, employment decisions may not be based on the following information:

  • Records of arrests or detentions that did not lead to convictions;
  • Information related to an applicant participating in (or being referred to) a pretrial or post-trial diversion program;
  • Records of convictions that have been judicially dismissed, or ordered sealed pursuant to law; or
  • Records of non-felony convictions for possession of marijuana, if the convictions took place two or more years ago.

A proposed amendment to the California Code of Regulations would place additional prohibitions on which types of criminal history employers may consider when deciding who to hire, fire, promote, train, or discipline. Section 11017.1 does not specify any particular types of criminal history information that would be off limits. Rather, it would prevent employers from considering convictions that would have a disparate impact on employees and/or applicants, on the basis of characteristics such as race, gender, and national origin.

Criminal History and Defining “Disparate Impact”

If a selection procedure has an adverse impact on the hiring, promotion, or other employment opportunities of members of any race, sex or ethnic group, then it would be considered discriminatory, unless the procedure is both job-related and consistent with business necessity.

In other words, let’s say that studies show that members of a particular ethnic group are disproportionately likely to have been convicted of drug offenses. If an employer is refusing to hire applicants with histories of drug convictions, and a rejected applicant demonstrates that his or her ethnic group is adversely affected by this policy, then the burden would fall on the employer to justify the validity of its policy regarding drug convictions.

The employer could do this by showing that its policy is related to successful job performance, and measures a person’s fitness for the specific job. The amendment specifies that the employer must demonstrate that the policy/practice in question is appropriately tailored, by taking into account “at least” the following factors:

  • The nature or gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job.

In order to show that the policy is appropriately tailored, the employer has two options. The first option is to conduct individualized assessments of the circumstances or qualifications of applicants or employees who are excluded by the policy.

If, however, the employer would rather use a “bright-line, across the board” policy of disqualification, then it has another option. In this case, the employer must show that the policy can distinguish between individuals who have acceptable levels of risk, and those who do not – and that the convictions have a direct and specific negative bearing on individuals’ qualifications. [Read more…]

Santa Rosa Employer Employee Data Privacy Protection

internet securityNew Nightmare for Santa Rosa Employer Employee Data Privacy Protection & Employer Responsibilities

Scenario:  A key employee resigns and you find that they have shared private and personal information about your customers on Facebook.

Nowadays, employers collect a great deal of personal information about their employees, customers, patients, clients, and others along the course of the work day. Companies use employees’ personal information for many reasons such as administration of payroll, employee benefit plans, and evaluation of employment applications, the handling of independent contractors, terminated employees, retired employees and so forth.  In this computer dependent age, personal data is being shared and transferred between organizations online; and thus, maintaining compliance with applicable data privacy laws is an ever increasing responsibility of employers.

Companies need to be aware of their obligations under the profusion of data protection laws and regulations that govern the collection, use and transfer of personal information. Additionally, data privacy laws include not only active employee information, but extend to any non-employee groups whose personal data they may acquire.

Minimizing Employer Risk

The Petaluma employment law attorneys at Beck Law P.C. suggest the following to attempt to minimize employer risk.

Companies should seek counsel annually with an experienced employment law attorney, to acquire the appropriate legal interpretive guidance on compliance matters so as to avoid legal violations and security breaches involving employee personal data.

Policies should include legal language specifically directed to employee procedures in regard to data privacy to ensure the best practices that aim to limit the amount of personal data they collect, process, transfer and store.

Companies should limit access to personal data and provide training to staff that handles personal data.

Companies should include legal language in their policies stating that business computers will be monitored and reviewed periodically to ensure employees are applying appropriate security measures regarding personal data.

Even Still:   All the precautionary measures in the world will not stop a dishonest employee from selling your business’s personal information, such as your customer social security numbers online and you, as the business owner will be held accountable for their actions.

There is absolutely nothing an employer can to do to prevent an employee from texting information from their personal phone or simpler still, writing down the information and throwing it in their purse or pocket before walking out the door.

Therefore, the labor and employment attorneys at Beck Law P.C. offer these further tips:

Perform all due diligence during the interview process when hiring a new employee.  Take your time, and have multiple interviews so that you begin to trust the person you are about to hire, before you hire them.  Call all references and carefully listen to not only what they say, but more importantly, what they don’t say.  Ask lots of questions to cull out information that may give you more clues to this person’s integrity.  Use your intuition, and perform all interviews with other trusted staff members to get their feedback,  and if any one of you feel something is not quite right with this person’s integrity, move on until you feel very comfortable with who you are going to hire.

For current employees:  Know your employees, be attentive and listen to them, use good communication and eye contact.  Always honor and praise good work.  Be on the look- out for suspicious behavior such as when an employee uses negative body language or challenges you in ways that you find inappropriate to the situation, as this may an indication of guilt that they may be doing something behind your back.  Listen to other employees who report that they do not feel comfortable about another employee’s actions.  If you feel a negative feeling about an employee, trust your feeling, as you are most likely correct.  If you suspect and employee of dishonesty, begin your due diligence research and contact an experienced employment attorney, such as Beck Law P.C. to handle the appropriate legal remedy and counseling process to remove said employee from your work place.


The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.