Category: Discrimination

When you apply for a new job in California you may notice that the job application is a little bit different than it used to be. As of January 1, 2018, employers are no longer allowed to ask applicants about their criminal history on initial job applications. What does this mean for potential employees who do have a criminal past? Can employers ever ask about your criminal record? How can you know if your employer has unlawfully discriminated against you because of your past? Check out the answer below and then call our San Jose employment discrimination attorneys to learn more. 

California’s “Ban-the-Box” Law

California’s new law prohibits private employers from asking about an applicant’s criminal convictions on an initial application. This is great news for California residents who are on the hunt for a job. According to the National Employment Law Project, approximately one-third of all adults in California have been arrested and/or convicted of a crime. A criminal record only reflects past behavior and is not particularly great for projecting future issues. In the past, applicants who have been arrested and/or convicted of a crime faced an uphill battle when hunting for a job. Employers are generally more inclined to hire employees who have no criminal history. The new ban-the-box legislation puts all California applicants on a level playing field.

Employers Can Still Run Background Checks

Just because employers cannot ask about criminal records on an initial application does not prohibit them from running thorough background checks. If you are being seriously considered for a position, employers will probably still look into your past. Employers are permitted to look into your criminal history once a conditional offer of employment has been made. This means that, in most situations, employers will see your prior indiscretions. However, preventing employers from asking about this early on in the application process gives applicants with a criminal past a chance to get relatively deep into the hiring process. Employers, armed with personal information and insight into an applicant, can use the results of a background check to make an informed decision. This will help an applicant’s chances of securing meaningful employment.

Employers Still Empowered To Make Decisions

Under the new California law, employers are still entitled to choose the applicant they feel is the best fit for the open position. Even though they cannot ask about criminal convictions up-front, they will likely find out at some point during the lengthy application and interview process. When an employer learns about an applicant’s criminal past they maintain the right to choose another candidate. This is true even if that applicant was the best possible fit for the job.

What employer cannot do, however, is pass over an applicant because of his or her race, gender, disability, age, or sexual orientation. Statistically speaking, applicants who have a criminal record are more likely to identify as a part of one of these protected classes. Employers are still prohibited from unlawfully discriminating against applicants. The fact that minorities are more likely to have criminal records can complicate the application process. When an applicant is passed over, is it because they have a record or is it because they were unlawfully discriminated against because of their race?

Proving Discrimination

Some employers may use the fact that an applicant has a criminal record as a reason for choosing an alternative candidate. If you are passed over for a job, and believe that the motive was discriminatory, it is crucial to speak with a California employment discrimination attorney. It will be important to look at the entirety of the circumstances and determine if you have a valid case. Your attorney will look for evidence to support allegations of discrimination, including:

  • Who was ultimately hired for the position you were denied;
  • The current diversity of the workplace;
  • The employer’s prior hiring decisions;
  • The employer’s reason(s) for denying you the job; and
  • Whether your criminal record is relevant to the position for which you were denied.

If your attorney believes that there is sufficient evidence to support a claim of discrimination, they may suggest taking legal action. Employers can face harsh civil penalties if they unlawfully discriminate against job applicants.

If you believe that you have been the victim of discrimination in the workplace call the Briski Law Group for help. We will review your case, explain your rights as a job applicant, and answer the questions you have.

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