July 25, 2017
To: Superintendents, Member School Districts (K-12) - Humboldt County
From: Damara L. Moore, Senior Associate General Counsel and Frank Zotter, Jr., Senior Associate General Counsel
Subject: Addendum to New Regulations Restrict Using Criminal History in Employment Decisions, but with Limited Application to Schools
ADDENDUM to Memo No. 20-2017
Our office recently issued a Legal Update about a new regulation that restricts the use of criminal history in employment decisions (Legal Update Memo No. 20-2017). After receiving inquiries from a number of clients, we contacted the Department of Fair Employment and Housing (“DFEH”) to understand how they intended to reconcile the new regulation with California Labor Code Section 432.9, which took effect January 1, 2014. Unlike the regulation, the statute includes a clear statement that:
“This section [regarding inquiry into criminal history] shall not apply to a position for which a state or local agency is otherwise required by law to conduct a conviction history background check, to any position within a criminal justice agency… .” Labor Code Section 432.9, subd. (b)
It has been the consensus since 2014 that Section 432.9 does not apply to school districts, county offices of education, or community college districts, because all of them are required to conduct such background checks. While there is an argument that the language of the new regulation goes beyond the language of Section 432.9, DFEH states that they do not believe that this regulation will apply to schools and colleges.
Accordingly, we are withdrawing Legal Update No. 20-2017, and recommend that our clients be aware that they need not make changes to their hiring practices because of the new regulation. We will continue to monitor the situation and keep you apprised of any further developments.
Please contact our office with questions regarding this Legal Update or any other legal matter.
The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.
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All rights reserved. However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.