EFFECTS OF THE BAN THE BOX MOVEMENT ON

CA PARKS & RECREATION DISTRICTS

New Restrictions on Criminal Conviction Consideration

Presented by Serena M. WarnerAngelo, 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 ex-offenders 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

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)

Positions within a Criminal Justice Agency

Positions Requiring Background Checks

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 Policeo Support staff working for a Criminal Justice Agency

RESOURCES TO DETERMINE WHERE BACKGROUND CHECKS ARE

REQUIRED

CPRS website: http://www.cprs.org/user_media/pdfs/Fingerprinting_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 No

 

 Can you, with or without reasonable accommodation, perform the essential functions of the position in which you are interested?

Yes No

 

 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

 PLEASE NOTE: A CONVICTION RECORD WILL NOT NECESSARILY BE A BAR TO EMPLOYMENT 

 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

 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 positionExamples:

“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 non-exempt 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

swarner@akk-law.com916-564-6100