Removing Barriers to Employment from Criminal Records

Californians with criminal records face obstacles and barriers to employment. For example, Uber has announced more intense screening of its drivers, including background checks every two years and checks on new criminal and DUI charges. But recent laws limit how employers may use an applicant’s criminal history and open licensed professions to those with criminal records.

California Criminal Background Check Reform

The Fair Chance Act, which went into effect on January 1, 2018, is a “Ban the Box” law that prohibits employers from:

• Asking on a job application about criminal conviction history before a conditional job offer has been made
• Asking about or considering your criminal history before a conditional job offer has been made
• Considering information about:
a) arrests not followed by conviction
b) participation in pretrial or post trial diversion programs
c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated

Criminal History Check After a Job Offer Must Include an Invidiualized Assessment

After offering you a job, employers are allowed to conduct a criminal history check.

But an individualized assessment of your conviction history must be made that considers the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job you are seeking. If the employer decides to take back the job offer based on your criminal history, they must tell you so in writing, provide a copy of any conviction history report they relied on, and give you at least five business days to respond.

Violations of the law may be reported to the California Department of Fair Employment and Housing within one year of their occurrence.

AB 2138 Allows Applicants whose convictions were expunged to be licensed

In October, 2018, Governor Brown signed AB 2138, authored by Assembly members David Chiu and Evan Low, to remove barriers for occupational licensing for close to 8 million Californians living with criminal records.
Starting July 1, 2020, boards and bureaus under the Department of Consumer Affairs:
• Cannot deny people a license for convictions that receive a dismissal (1203.4 et seq and comparable statutes), expungement, Certificate of Rehabilitation, or pardon.

• Cannot deny people a license for arrests that never led to conviction.

• Cannot consider convictions older than 7 years unless they are one of the enumerated felonies classified as serious; sex-related offenses; or in certain cases, financial crimes that broke a fiduciary/business duty.

• Cannot ask an applicant to self-disclose information about their criminal record unless it is for the purpose of weighing mitigating factors/rehabilitation of the applicant.

• Must develop criteria for determining whether a crime is substantially related to the qualifications, functions, or duties of the business or profession.

• Must consider an applicant’s rehabilitation.

• Must follow certain procedures and rules when requesting or acting on an applicant’s criminal history information.

People with criminal records who apply for occupational licenses to boards under the Department of Consumer Affairs before July 1, 2020, will still be subject to current law. Starting On July 1, 2010 AB 2138 will be in effect.

New Rights for those with Criminal Records: AB 2138

AB 2138 applies to about 40 licensing boards under the Department of Consumer Affairs. People who are trained and qualified for licenses cannot be denied because of irrelevant and dismissed convictions.

After seven years, crimes that are not serious felonies, sex offenses, or relevant financial crimes cannot be considered under AB 2138.

Applicants no longer will need to self-disclose the details of their record prior to issuance of a California Department of Justice background check.

AB 2138 prohibits the use of dismissed and sealed convictions, convictions for which a person received a Certificate of Rehabilitation, and non-conviction acts such as arrests that never led to conviction to deny licensure.

Studies have shown that states with more fair processes for occupational licensing have dramatically lower recidivism rates.

Help in Expunging a Criminal Record

An experienced attorney who understands the expungement process and the application process for a Certificate of Rehabilitation and pardon can assist you in removing obstacles to employment.

Attorney David Uthman has over 20 years of experience as a Public Defender and litigation attorney and almost a decade of experience as a police officer. He knows how to craft an individualized expungement petition to maximize the chances of it being granted. He and his staff understand the process for applying for a Certificate of Rehabilitation and Pardon so that a criminal record does not limit your opportunity to succeed. Call the San Francisco  criminal defense at the Uthamn Law Office. (415) 556-9200 to schedule your FREE initial consultation.

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