You May Not Use Criminal Non Convictions For Employment or Housing Decisions.

The California Assembly Approved SB 393 to Seal Records

The California Assembly approved a bill that would seal arrest records prohibiting employers/landlords from using non-convictions as a hiring or housing decision.

The Assembly approved Senate Bill 393 (Consumer Arrest Record Equity Act) to seal arrest records and eliminate barriers to housing and employment for those arrested for a crime, but not convicted. San Francisco District Attorney, George Gascon, was the sponsor of the CARE Act. SB 393 is part of the #EquityandJustice initiative, which is a package of bills mutually authored by Senator Ricardo Lara (D-Bell Gardens) and Senator Holly Mitchell (D-Los Angeles).

Its philosophy is to bring awareness and improve prevention, rehabilitation, and maintain family cohesion. Current statistics state that 40% of men and 20% of women are arrested before the age of 23; however, the majority of them are never actually convicted of a crime.

As Senator Ricardo Lara explains, “Arrests that do not lead to conviction can haunt people and show up years later in background checks that block them from finding a job or an apartment.” In his opinion, “Jobs are our number one crime-fighting tool, and SB 393 will clear away barriers to employment for many arrested as young people who were found innocent or never tried.

When 40% of young men are arrested before age 23, we need to do something to repair the damage an arrest without conviction can do.”

Possible reasoning behind this legislation is to account for inaccurate information being reported by Consumer Reporting Agencies (CRA), such as arrest records or dismissed cases. Federal and state law specifically state what may be reported on an employment background or tenant screening report.

These are cases that are required to have resulted in a conviction within a certain time period. Employers need to understand the law and ensure that their third party background screening vendor is only procuring compliant information that the employer can use.

The CARE Act creates a consistent uniform legal process for consumers to petition to the court to have their arrests records sealed if those records did not result in a conviction. In May, SB 393 passed the Senate with a bipartisan vote of 33 to 6, and is now headed to Governor Jerry Brown for review.

What Employers Should Know About Expunged/Sealed Records

With the current trend and philosophy of trying to eliminate barriers to employment for certain individuals with a criminal past, states are starting to expand the types of criminal convictions that can be eligible for sealing or expungement.

What this means is that after a person has been convicted of a crime and has successfully completed their sentencing requirement, they can petition the court to have their criminal conviction sealed (process of removing the records pertaining to a court case from general review) or expunged (results in the deletion of any record that an arrest or criminal charge ever occurred).

Employers must ensure they are not receiving sealed or expunged cases from the background screening partner. They must also ensure that they are not taking any form of adverse action against their employment based on said cases.

These state efforts dubbed “Second Change” or “Clean Slate” bills would limit employers’ access to criminal records of arrests without convictions, minor misdemeanors, and even low-level felonies to improve ex-offenders’ job prospects.

Summary of the Six Bills in the #EquityandJustice

  • SB 180: Drug Sentence Enhancements (Status: Legislature passed; action required from Governor Jerry Brown)
    Reducing sentence enhancements for certain low level, nonviolent drug offenses to increase prevention, rehabilitation, and maintenance of family cohesion
  • SB 190: Ending Juvenile Fees (Status: Legislature passed; action required from Governor Jerry Brown
    Specifying that the defendant may only be required to reimburse the courts for expenses associated with appointed counsels in cases where the defendant is actually convicted of a crime
  • SB 355: No Court Fees for the Innocent (Status: Signed into law on July 10, 2017 by Governor Jerry Brown)
    Only those convicted of a crime will be required to reimburse the courts for legal counsel fees
  • SB 393: Sealing of Arrest Records (Status: Votes pending on Assembly floor)
    Sealing arrest records and removing employment barriers to those that have been arrested, but not actually convicted of a crime
  • SB 394: Juvenile Life Without the Possibility of Parole (Status: Legislature passed; action required from Governor Jerry Brown)
    Ensuring California remains compliant by not sentencing juveniles to life without the possibility of parole as per the decision of Montgomery v. Louisiana
  • SB 395: Miranda Rights for Youth (Status: Legislature passed; action required from Governor Jerry Brown)
    Requiring minors under the age of 18 years old to consult with legal counsel before waiving their constitutional rights in police interrogations

It is important for all employers to understand the current climate surrounding hiring applicants with a criminal history. Having an open-mind will offer more opportunities to improve the lives of such applicants and their families. You can read the full text of the bill here.

Employers should furthermore align themselves with a competent third party background screening partner that understands compliance with not only these laws, but other initiatives such as the “Fair Chance Acts” and “Ban the Box” as well.

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Employers Choice Screening is a national employment background screening, and compliance training company headquartered in California with multiple certifications and registrations. We welcome the opportunity to work with chief procurement officers and diversity supply chain procurement managers to bid on RFPs and respond to RFQs for employment background screening, drug testing, and mandated employee compliance training services.