For most jobs in most industries, yes, employers can discriminate against potential employees because of their criminal past. This can make it extremely difficult for those with a criminal record to get a job, especially in certain industries or in areas with a very tight labor market.

Many criminal justice reformers have been seeking changes in the way that individuals with a criminal record are treated by potential employers. Most employment applications ask if the applicant has a criminal record, and some employers will use this question as a way to screen potential employees. This procedure has increasingly come under fire as a form of employment discrimination against former inmates which does not take into account how severe their offenses or how long ago the criminal activity occurred.

In recent years, a “ban the box” movement has grown, which seeks to change the hiring process so that ex-cons are no longer required to list their criminal history on a job application. In 2014, California became one of the states that bars public sector employers from asking about a job applicant’s criminal background during the early stages of the hiring process.

Earlier this month, President Obama announced a new executive order to reduce potential discrimination against former convicts in the hiring process for federal government employees. Under the new procedures, starting in 2016, applicants will not be asked about their criminal background initially. Instead, only when the most qualified applicants are sent to a hiring manager will criminal histories be reviewed. According to Obama, this will give those individuals a chance to get their foot in the door of the company, but at the same time does not require the potential employer to completely ignore an applicant’s criminal record.

According to the Justice Department, about 60 to 75 percent of former inmates cannot find work within their first year out of jail. This can be a huge obstacle to re-entering society. Research also shows that when an applicant has a criminal record, the employer’s interest in that applicant is reduced by about 50 percent. When white and black applicants both have criminal records, employers are much less likely to contact a black applicant than a white one.

Every year, over two million people in the United States are incarcerated. Of those, about 600,000 will be released back into society each year. In addition to President Obama’s executive order, he recently announced a number of other programs to help formerly incarcerated individuals re-enter society. The Department of Labor and Department of Justice will partner to establish a National Clean Slate Clearinghouse, which will help with expunging criminal records. Over 30 communities are taking action to expand access to tech training and jobs for people with criminal records.

Currently it is legal in California for most private sector employers to ask about an employee’s criminal record during the initial stages of the application process, and to reject those candidates if they wish. Public sector employers in California cannot ask about an applicant’s criminal record during the initial phases of the job application process, but can ask later, and can choose not to hire an individual because of that criminal record.

In addition to the difficulties facing individuals with a criminal record in obtaining jobs, it can also be difficult for an employer to know if they should hire someone with a criminal record. It would not be wise, for example, for a taxi company to hire a taxi driver with multiple DUI convictions that occurred recently, or for a preschool to hire a teacher with convictions for child molestation. To ignore an applicant’s criminal history means possibly exposing customers or other employees to harm, as well as potentially facing legal liability.

If you are facing employment law questions surrounding hiring issues in the Oakland – San Francisco area, call Micha Star Liberty, Oakland employment rights attorney, at 510-645-1000 or 415-896-1000. She can help answer your legal questions. Call today to learn more.



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