| ENACTED LEGISLATION |
| CALIFORNIA: Ban the Box Legislation amended
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Summary: Frequently Asked Questions ("FAQs") for California's Fair Chance Act were recently released by the California Department of Fair Employment and Housing ("DFEH"). These FAQ offer guidance on the Fair Chance Act and address how the law works, employers subject to the law, and requirements to follow when employers elect to inquire about an applicant's criminal history.
The DFEH Council also amended regulations pertaining to criminal background checks and the hiring process. Effective October 1, 2020, the requirements of the Fair Chance Act will be incorporated into existing regulations to address consideration of criminal history in employment decisions. Amended regulations expand the definition of "applicant" to include individuals who begin working under conditional employment terms while the employer conducts a post-offer assessment of the individual's criminal history.
Additionally, the scope of the Fair Chance Act was expanded, requiring labor contractors and union hiring halls to comply with established regulations in choosing workers for pool or availability lists. Regulations also state that employers may be subject to additional requirements local ordinances may impose.
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Impact(s): California employers |
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| MICHIGAN: Bill expands criminal record expungement
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Summary: Michigan is adopting an automated system by which certain convictions will be cleared from public records after a specified time period. However, Michigan is the first state to automatically clear prior low-level felonies.
Details regarding the clearing process include:
- Expunging misdemeanors seven years after sentencing
- Clearing felonies 10 years after sentencing or the person's incarceration release date (whichever occurs last)
- Automatic clearing eligibility for up to two felonies and four misdemeanors
Record entries not eligible for automatic expungement include:
- Assault crimes (i.e. homicide, manslaughter, kidnapping, rape, armed robbery)
- Serious misdemeanors
- Crimes involving dishonesty (i.e. forgery, counterfeiting)
- Offenses punishable by at least 10 years in prison
- Crimes involving a minor, a vulnerable adult, injury or serious impairment, death or human trafficking
Notable changes pertaining to this legislation include::
- Expungement eligibility for most traffic offenses that do not involve other crimes of a more serious nature
- A streamlined process to clear misdemeanor marijuana offenses that would not have qualified as crimes after recreational marijuana was legalized in the state
- Expungement application waiting periods ranging from three to seven years after the criminal justice system's monitoring period ends and as dependent on the nature of the conviction
- Unlimited misdemeanors and a maximum of three felonies can be expunged; however no more than two assaultive crimes and one felony conviction can be expunged for the same offense providing the offense is punishable by at least 10 years of prison time
- Multiple felonies or misdemeanors arising within the same 24-hour period will be regarded as a single conviction as it applies to expungement eligibility providing none of the offenses are assaultive, involve the use or possession of a dangerous weapon or carry a penalty of at least 10 years imprisonment
This legislation affords the state two years to implement the automatic expungement process; remaining legislation in the bill package will take effect in 180 days. Changes incited by this new legislation will take effect retroactively.
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Impact(s): Michigan employers |
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| ST LOUIS, MISSOURI: Ban the Box Legislation amended
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Summary: Beginning January 1, 2021, employers in St. Louis maintaining 10 individuals or more will be prohibited from:
- Utilizing an applicant's criminal history or related sentence to arrive at a hiring or promotion decision. Exceptions may apply if the employer can demonstrate that the decision is reasonably related to the duties and responsibilities of the position and was determined based on all relevant, reasonably available information including the frequency, currency and severity of the criminal history.
- Advertising positions that exclude applicants based on criminal history and/or incorporating exclusionary language in job applications and other hiring process-related forms.
- Inquiring about or requiring the disclosure of an applicant's criminal history on initial applications and related forms.
- Seeking criminal history information on an applicant via publicly available means.
An employer may inquire into an applicant's criminal history after the employer has interviewed the applicant and determined that the applicant is otherwise qualified for the position. Additionally, the employer can only make this inquiry provided that all applicants in the post-interview selection pool are also questioned regarding their criminal history.
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Impact(s): St. Louis, Missouri employers |
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| PROPOSED LEGISLATION |
| PENNSYLVANIA: Bill introduced to ban the box from college applications
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Summary: HB 2952, if passed, will prevent public colleges or universities in Pennsylvania from inquiring into a student's criminal history on the application or at any other time during the admissions process. It would, however, allow the university to "make such inquiries" after a student is accepted in order to offer counseling or support.
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Impact(s): Pennsylvania public colleges/universities |
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| PENNSYLVANIA: Amendment to Clean Slate Law
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Summary: An amendment to the Clean Slate Law, HB 440, has been proposed which would allow criminal history records to be sealed even if fines and fees were still owed. Currently, a record is not eligible to be sealed if the fees and fines were not paid. Certain employers who are required by federal law to consider criminal records, such as schools, hospitals, law enforcement and banks, will still have access to those records.
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Impact(s): Pennsylvania employers |
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| COURT OPINIONS |
| COURT OF APPEAL OF THE STATE OF CALIFORNIA: Appeals court orders new trial after determining employer had reason to know an applicant's criminal conviction was an impermissible employment consideration
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Summary: In 2010, Plaintiff pleaded no contest to misdemeanor grand theft. Following restitution payments, community service, and three years of probation, Plaintiff filed a motion under Penal Code section 1203.4 to have her conviction dismissed. The motion was granted and her conviction was dismissed in November 2013.
In 2014, Plaintiff was hired by a California car dealership ("employer"). She did not disclose the dismissed conviction on her application as permitted under the Labor Code section 432.7. Labor Code section 432.7 prohibits an employer from requiring an applicant to disclose any conviction that has been judicially dismissed and further restricts the employer from considering such record as a factor in the termination of employment. Four weeks after starting the job, the Department of Motor Vehicles (DMV) mistakenly reported Plaintiff's dismissed conviction as an active criminal conviction.
In lieu of investigating the discrepancy, the employer fired Plaintiff for supplying false information on the application despite Plaintiff's explanation regarding the dismissed conviction. Three weeks later, the DMV issued a corrected notice; however, Plaintiff was not rehired. She responded by filing a retaliation complaint with the Labor Commissioner in April 2014.
In December 2016, the Labor Commissioner ruled in Plaintiff's favor, ordering employer to pay back wages, a civil penalty and reinstate Plaintiff to her former (or similar) position. The employer was unsuccessful in appealing the decision and refused to comply with the terms of the Commissioner's ruling. In March 2018, the Commissioner filed an enforcement action, alleging that the employer unlawfully retaliated against plaintiff for exercising her rights under the Labor code section 432.7.
The matter proceeded to a jury trial. The trial court found in favor of the employer in February 2019, arguing that there was no concrete evidence allowing a jury to determine that the employer was aware the conviction had been dismissed when terminating Plaintiff. Plaintiff appealed to the California Court of Appeal where the judgement was reversed.
The California Court of Appeal determined that the employer had reason to be aware that the conviction was dismissed because of the discrepancy between Plaintiff's initial background check and the DMV letter. Rather than investigating the discrepancy, the employer terminated Plaintiff, despite Plaintiff notifying employer about the error and resolving the matter with the DMV. The case has been remanded back to the superior court for a new trial.
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Impact(s): Compliance - for general legal review |
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| COMMONWEALTH COURT OF PENNSYLVANIA: Court dismisses discrimination complaint
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Summary: A community college rejected a student's request to be excused from a mandatory drug test conducted by the school's nursing program. Students that test positive to this urine-based drug test are ejected from the program. The student contended that she maintains a prescription for medical marijuana as treatment for an issue. Following the school's refusal, the student filed a discrimination complaint with the Pennsylvania Human Relations Commission.
When HACC officials appealed the commission's refusal to void the student's complaint, the case was directed to Commonwealth Court. In late October 2020, a court panel ruled in favor of the school and ordered that the woman's complaint be dismissed. The court determined that a nursing student can't avoid drug testing even if the student has a prescription for medical marijuana.
The law permits punishment of medical marijuana users who pose a public health or safety risk while under the influence of the substance. Judge Patricia A. McCullough explained that "this provision would clearly apply to intensive care unit nurses or other nurses who are under the influence of medical marijuana while on the job or in training."
Following the decision, the judges urged the Legislature to revisit the law regarding medical marijuana to address gaps and review associated consequences. The judges noted that the central problem with the Medical Marijuana Act (MMA) is that when it was passed, the Pennsylvania Human Relations Act (PHRA) and the Pennsylvania Fair Education Opportunities Act (PFEOA) were not amended to mandate accommodations for individuals who have been legally prescribed medical marijuana. Marijuana remaining illegal under federal law also complicates the situation.
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Impact(s): Pennsylvania higher education institutions |
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