Labor Code 432.9 (AB 218) - Angelo, Kilday & Kilduff, LLP

Report
EFFECTS OF THE
BAN THE BOX MOVEMENT ON
CA PARKS & RECREATION DISTRICTS
New Restrictions on
Criminal Conviction Consideration
Presented by Serena M. Warner
Angelo, Kilday & Kilduff LLP
DISCLAIMERS



This presentation is tailored to California Parks and
Recreation Districts.
The provisions of Labor Code 432.9 also apply to other
entities in California, as specified in the statute.
This presentation is a guide to the new Labor Code
432.9 requirements but is not exhaustive, does not
take the place of consulting with legal counsel, and
does not constitute legal advice as to any particular
set of circumstances.
LABOR CODE 432.9 (FORMERLY AB 218)



ALREADY IN EFFECT as of July 1, 2014:
Restricts public agencies from INITIALLY
reviewing a job applicant’s criminal convictions.
Requires Districts to make the determination
whether an applicant meets minimum job
qualifications before inquiring about criminal
convictions.
WHY?

The premise of the
Ban the Box
Campaign is that
anything that makes
it harder for exoffenders to secure a
job makes re-offense
more likely.
ADDITIONAL RESTRICTIONS
 Prohibits
Review of Applicant’s
Information Not Resulting in Conviction
(Labor Code 432.7)
 Precludes
Use of Convictions for
Misdemeanor Marijuana Possession over
Two Years Old (Labor Code 432.8)
IMPORTANT EXCEPTIONS
Positions within a Criminal Justice Agency
o Defined as agencies that perform as their principal function,
activities relating to the apprehension, prosecution,
adjudication, incarceration, or correction of criminal
offenders.
o Examples:
o Rangers and Park Police
o Support staff working for a Criminal Justice Agency
Positions Requiring Background Checks

Examples:
 Any employee working directly with minors in a Recreation
Program (Ed. Code 10911.5)
 E.g. child care workers, parks and recreation facility
employees, recreation program employees, etc.
 Any employee having disciplinary authority over a minor. (Pub.
Res. Code 5164)
 Any employee providing direct care or security for children, the
elderly, or disabled individuals. (Penal Code 11105.3)
RESOURCES TO DETERMINE WHERE
BACKGROUND CHECKS ARE REQUIRED


CPRS website:
http://www.cprs.org/user_media/pdfs/Fingerprinti
ng_Employees.pdf
Department of Justice, Office of the Attorney
General Website: http://oag.ca.gov/fingerprints
PLEASE NOTE:
Exemptions
are determined
position by position.
An
ENTIRE District will not be
exempt from LC 432.9.
PENALTIES
 Each
violation of 432.9 can result in
a lawsuit for actual damages or a
penalty of $200, whichever is
greater.
TRUE OR FALSE?
LC 432.9 prohibits a
District from considering
criminal convictions in the
hiring process at all.
FALSE




LC 432.9 restricts WHEN a District can consider
information about criminal history.
The District must determine if the applicant meets
the minimum qualifications before considering past
criminal convictions.
Welfare and Institutions Code 15660 provides that an
employer may deny employment due to past criminal
convictions (except as otherwise provided by law).
Public Resources Code 5164 prohibits certain public
entities from hiring persons with specific offenses (e.g.
sexual assault) where their position would have
disciplinary authority over minors.
TRUE OR FALSE?
If the District requires
background checks of all
employees, it is exempt from LC
432.9.
FALSE


LC 432.9 only exempts positions where a
background check is required BY LAW.
Contact District Counsel if you are unsure
whether a specific position legally requires a
background check.
TRUE OR FALSE?
Labor Code 432.9 applies to any
position your District does not
conduct a background check for
currently.
PROBABLY TRUE

…but verify with your District counsel to ensure
your District is properly conducting background
checks where legally required!
A PRACTICAL GUIDE FOR COMPLYING
WITH LC 432.9
 Step
1: Determine which positions
in your District REQUIRE criminal
background checks.
 Step
2: Create separate applications
for exempt and non-exempt
positions.
A PRACTICAL GUIDE FOR COMPLYING
WITH LC 432.9 CONTINUED…
For Non-Exempt Positions:
 Step
3: Eliminate any questions
about criminal history from the
initial application.
 Step
4: After the minimum
qualification determination is
made, provide a supplemental
application
Were you ever previously employed by CAPRI?
Yes
No
From When:
To:
Do you currently have unrestricted work authorization allowing you to accept employment in the United States?
Yes
No
In the event of an emergency, whom may we contact?
Name:
Telephone:
Name:
Telephone:
Are you willing to work evenings?
Yes
No
Are you willing to work Weekends?
Yes
No
Are you 18 years or older?
Yes
Can you, with or without reasonable accommodation, perform the essential functions of the position in which you are interested?
No
No
Yes
Have you ever been convicted of a violation of any law or ordinance other than a traffic violation (juvenile
delinquency, youthful offender and wayward minor excluded)?
No
Yes
Have you ever been convicted of a violation of any law or ordinance other than a traffic violation (juvenile delinquency, youthful offender and wayward minor excluded)?
No
Yes
If yes, please explain
If yes, please explain
PLEASE NOTE: A CONVICTION RECORD WILL NOT NECESSARILY BE A BAR TO EMPLOYMENT
PLEASE NOTE: A CONVICTION RECORD WILL NOT NECESSARILY BE A BAR TO EMPLOYMENT
RECORD MINIMAL QUALIFICATION
DETERMINATION
TIP:
 Add a disclaimer on the application that explains
how an employee would know whether he or she
met the minimum qualifications for the position
 Examples:
“Applicants meeting the minimum qualifications for
the position will be contacted for an interview.”
 “Applicants that meet the minimum qualifications for
the position will receive a supplemental
questionnaire.”

or
 Stamp and date applications of those meeting the
minimum qualifications of the position.
HYPOTHETICAL SITUATION
What if an applicant voluntarily tells you he or she has a
criminal record in the initial hiring stage?
Do not ask any further details. Inform the applicant
that the information will not play a role in your
determination of whether or not he or she meets the
minimum qualifications for the position. Have someone
else within your District without knowledge of the
conviction make the minimum qualification
determination.
RECAP:

LC 432.9 restricts WHEN you can consider an
applicant’s criminal history.

There are exceptions for positions in a criminal justice
agency or those requiring background checks by law.

Create separate applications for exempt and nonexempt positions.

Keep records of when the minimum qualification
determination is made.

LC 432.9 does not restrict your ability to decide
whether to hire an applicant with a criminal record as
long as that information does not play a role in the
minimum qualification determination.
THANK YOU FOR ATTENDING!
Presented by Serena M. Warner
Angelo, Kilday & Kilduff LLP
[email protected]
916-564-6100

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