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Are Felons the Next Protected Class?

On Behalf of | Sep 21, 2013 | Firm News |

According to the National Employment Law Center, a labor-affiliated advocacy group, one-in-four adult Americans in the U.S. have a criminal record. That’s sixty-five million Americans.  It is no surprise that policies are changing regarding whether employers can exclude individuals from employment based solely on a past conviction. That means employers should and are reconsidering blanket criminal background checks on employment applications.

Policy changes are being spearheaded by the Equal Employment Opportunity Commission and the private-sector under the ban-the-box campaign; new laws are appearing across the United States.

First, the EEOC warns private-sector employers that they could expose themselves to substantial liability unless they narrow the use of arrest and criminal convictions when making employment decisions. For example, when a minority applicant is disqualified for a job based on a criminal background check, there is support for a finding of racial discrimination.  Employers are being investigated by the EEOC for blanket criminal background checks even without direct evidence of blatant discrimination.

Second, arrest records, unlike criminal convictions, do not establish criminal culpability. As such, the EEOC says that employers should not use them in hiring decisions. Employers should wait until further into the hiring process before asking about criminal history and should only ask about incidents that are job-related.  Consistent with the EEOC recommendations, several states and local governments have “banned the box,” removing questions about criminal convictions from job applications.

In addition to a “ban on the box”, the EEOC recommends that private-sector employers use individual assessments that consist of multiple factors before making an employment decision based on criminal history.

Regardless of the EEOC’s findings, a Certification of Rehabilitation or Expungement may help with future employment opportunities for those with a criminal history.

Certification of Rehabilitation

A certification of Rehabilitation is a court certified document that declares the person is now obeying laws and demonstrating good moral character. The purpose is to restore rights of citizenship to ex-felons and some misdemeanants who can prove that they are rehabilitated.

To apply for a Certification of Rehabilitation, there are several requirements under Cal Pen Code section 4852.01.

The benefit of a Certification of Rehabilitation is that the person will receive the right to vote and other civil and political rights related to citizenship previously denied. However, a Certification of Rehabilitation does not erase the underlying record of conviction.


Expungement is a petition to the court to dismiss a person’s criminal conviction. Generally, to qualify for an expungement in California, a person must be convicted of a misdemeanor and never given probation or the person must have completed their probation.

If convicted of a felony, a person can request an expungement if they have completed probation (where required) and if they were not sentenced to a state prison.

Expungement is beneficial because a criminal conviction will not be accessible by employers or other private-sector entities.