Theft, Attorney, California discussed on Workplace Perspective
Allen in looking more. Specifically the statute, a lot of things that jump out at me as really concerning from an applicant perspective and the employees perspective. But let's start with this requirement naked individ- lives, and that we talked about where does it employer even start given the factors? I get why the factors in there at makes perfect sense. But even having those factors in there who's the employer start. Let's start with the definition to help everyone out. Exactly, what are we talking about what a conviction is? And this notion of conviction history recall, earlier, we discuss all of the things that you cannot ask about Iressa the did result in convictions. The diversions the convictions that have been dismissed all of those are off the list. What is on the list is convection into conviction. The definitions not something new for employers in the sense that. This new legislation uses the same definition as we find in the earlier labor code deal on the books, and then that is a conviction includes a plea verdict or finding guilty. And it doesn't matter whether the sentence has been imposed by the court again, you can ask about arrests for which the employee is out on bail or his own reconnaissance, ending the trial, and another thing to recall that in California. If someone has had a sustained petition as juvenile five juvenile court, meaning that they were eighteen years, or under that is not considered a conviction. So if they have something that accidentally shows up on the record, which shouldn't, but sometimes does, by the juvenile court, meaning they were eighteen years or younger, that is not a conviction. So what you're going to find. Is that again, looking at the nature and gravity, the time that has passed the nature of the job as I said before? A lot of times, the things that the employer will be provided with a conviction, but it will simply say, hey penal code number. And it will not tell the employer of thing about the fact though. Who are real, easy example, and see how simply knowing the number is not enough to solve this problem that has been put worth that is how serious was this doesn't really relate to the jerem an example. Let's say for instance a banking institution seeking tellers. Obviously, he would certainly find it relevant to know that a candidate for employment and been convicted of colonial grand theft of money, five years earlier, when they were employed as a cashier for a retail outlet now in the last few years, California, defines, basically, grand theft, that is the taking of goods or money or services in the amount of nine hundred fifty dollars or more. Anything under nine hundred fifty dollars is now considered any theft, and then it's been raised in the last three or four years. So in contrast consider the same perspective, employer that they've learned the candidate had been convicted for colonial grand theft, only to find out that the conviction. Was based on the fact that the candidate in two other girlfriends when shoplifting for a couple of pairs of expensive jeans and 'cause medics from the local shopping mall when they were eighteen years old. You can see that, that could make a great difference in how one would look at that perspective applicants. To understand that those limits have changed over the year and each subsequent change in the law. What used to be in offense is all of a sudden, not an offense anymore or what it was before, isn't a serious as it is now. And I think that's really challenging employers particularly true with her Khadyka fits, California, in the last couple of years things with a had been felonies for let's say almost a hundred years in our state suddenly, have become misdemeanors. So the legislature does not use simple possession of methamphetamine, heroin, opiates, particularly marijuana as serious offense in the same way that they used to just a couple of years ago. There are many ways in which individuals can go and take that off the record that will Scott in just a moment. About this in preparing for today's talk. There's the California code of regulations, and I forget the section number, but that the time this past is really important because if you're trying to use a conviction I believe it seven years older. Correct. Yeah. If you're using a conviction that seven years or older, there's this presumption that that's not good enough. So as an employer you wanna keep that in mind, they're trying to save exactly what you've been talking about if it's too old hangs of likely change and that condition, probably doesn't mean now what it meant then correct? That's really to tell code regulation, section one one zero one seven and that provides for seven years. I can tell you from experience with perio- court judges that traditionally we've used anywhere from seven, but usually ten years as a wash up period is what it's called, so an individual picked up a grand theft of the been off. Ovation now for seven to ten years. They let a lawful life. It was their only offence. The court is more likely to withdraw that plea and seal that record. And that's what we call that washout, period. And the reason is, there's a lot of research pointing that, unfortunately, young people eighteen through twenty five their brains are still developing. They are not able to foresee the serious consequences than violations of the law could happen. Everybody knows when they're in college or high school age. We've all done things that we look in the past and say my God, but was thinking the legislature is now taking that into account and saying, what these people did something who wish when they were young. They really didn't think through it was nonviolent. Let us give them a second chance, ten years as past their now adult and let's really take a look now they've grown up how they're contributing to the community. We. I should not forbade them for the rest of their life to becoming a valuable member of our working community. And that's really the logic behind it, and in anti-subversion at the building sign, I had been in is, as the my employer clients to start looking now at all of their job, description and to start making some of these initial assessments about the types of convictions that with likely disqualifying applicant like you've just not. So depending on the circumstances, someone with that say fraud conviction with likely be disqualified from holding the position of thanked Heller depending again on the circumstances. But I think at least thinking ahead and sort of conducting this type of the Cessna heels gonna go a long way in helping an employer to sort of short circuit, any claims of discriminatory hiring practices, because there are some things that you have to determine on the spot at the time that if you've already been thinking about it, and you looked at the serious things that would prevent someone absolute obvious things, then you really know along. Way toward not making impulse deficient. You've already thought it through which is really what the statutes about is an employer being able to show that they have thought about it saved looked into they've considered the job versus conviction. How is this realistically going to impact it, and that's really all the statute is wanting them to do? So one of the things I find concerning about the statues is the timeframe for the applicant to respond now. I can't imagine that there's much an applicant can do in essentially Hyndai's time to fix anything. They have initially five days to respond, if they want to challenge the preliminary decision not to give them the job, and then what they notified employer that they get an additional five as overall. We looking at ten days, what can somebody do in that anything realistic, but really is kind of short and unless the client really has paperwork or information that they've kept over the years. The really isn't a lot to do for instance. The timeframe is really too short or. For an applicant to seek judicial remedy such as the dismissal example due to the backlog has been created. It can take up to six to eight weeks or longer in many counties for individuals to petition and for the court to order, dismissal of a conviction. I could be something as simple as a petty theft, a drug conviction. It's kind of automatic, but it's a backlog thing, it, it can take up six to eight weeks. It will take you in a few weeks longer, because the court will immediately notify the California Department of Justice, and they will change that raft sheet that criminal history, and it will take a little bit longer for that to be affected. And that's exactly what the employers you're looking at a thing to remember, also is that wherever the conviction was sustained that is the county in which the crime occurred, and the defendant was sense. That's the county in which an applicant has to seek judicial relief, so that can add additional time to what's going to happen. Because sometimes it's done by mail or trying to find counsel. So there's a lot of difficult things that come that ten days. That's the minimum I see nothing in the law that if an employer was really interested in an applicant that they can't grant them longer ten days is the minimum law that has to be done to fulfill the requirement and that's really too short for people to do. Net statutory requirement and you're right. There's absolutely nothing that they can't do one last point on that my best advice to any applicant who maybe perspective employees who's listening to us today is, it's never too soon to seek relief. In other words, even before you're considering looking for a job, contacted attorney or fifth at petition in and seek judicial relief. If you're entitled to it because, you know, it's going to take a couple of months to do it start now before you apply. I've had situations where employers are more than willing finding out that the employee has already taken time to file a petition in court. They will grant them that extra time to see if the court dismisses it, meaning that if a court dismisses it that they can't considered in the criminal history. And as far as the employer is concerned, the individual has cleaned criminal history. So Dr now don't wait. Absolutely, especially if you know there might be something there. Now, he advocate does provide an employer with evidence, either documentation or an explanation to just something in the conviction history are there any red lives from your experience, that employers should be looking for. Really times. We will find that the candidate really doesn't have accurate documentation to provide to the employer. It's not that common that the client will have police reports which would certainly clear up the matter that the employer can read to see how serious or non series. The matter might have been guilty plea forms on the other hand contain statements of the offense. But I found a lot of times plants. Don't have that in our age of computers. Now, many times, get that information directly from the court, particularly the guilty plea form the type of sin another thing that I've been asked my clients to do that, if they will waive the attorney client privilege. I'm happy to provide a letter to the employer or the attorney who handle the matter, usually has the appropriate documentation to revive to the employer. So the employer there's nothing to say. Once we get to the appropriate time frame that. You know Mr. employer. You may be to my attorney or my turn is happy to provide you with anything that you need to clear this matter up. And usually I found that the employers are very grateful for that kind of information. It saves them time, it's as than money. And it puts them in a position where they can really evaluate the things that are required by statue. When we earlier, also mentioned that you were getting a number as clients say, hey, hi, putting advocated for this job. There's a problem with my criminal history, and the employers willing to wait for me. And that's been the trend that they see employee's that they really really want. And but for the fact that they have this one thing on their criminal history, they would instantly hunter them, so they're willing to wait to see if things can be cleared up in court and ninety nine out of one hundred times it's successful happy to hear that. I think it's. Just a terrific trend and I'm hoping that the statute really does have the long term effect that the legislation intense now before we wrap things up for today. What are some other takeaway from today's program that you think people should be aware of Hartford award from the perspective, Ripois point of view? If you have a criminal conviction on your record right now check with an attorney, or a local public defender in the county in which you sustain that conviction, you may be eligible to take advantage of judicial relief, such as this missile perhaps, the ceiling of record and you should do so immediately. Don't wait to see employment. Do it immediately from the employer's point of view. If the conviction history is the only thing standing in the way of hiring candidate really take our close long. Look, those factors of three factors that are listed by the statute again. The nature and gravity is one thing to go in and steal carton of cigarettes from the target and in those days in my. Been on your record showed that you had a commercial burglary. It's quite another situation that someone goes into the very, same store and clean them out for hundreds of thousands of dollars of merchandise. How long is the time that's passed between that again, people change over time they become more serious? They get married. They have children responsibilities and things. Let's call them sins of our youth. We grow up we change. And that's something really take into a look that if you've gone ten or more years, and you haven't had those same problems, more likely than this was an aberration in your life, and then, again, the nature of the job, if you're going to be someone who is not handling money and you're going to be driving a truck. The question is, does it really matter if at the time, you stole a candy bar when you are nineteen years old or that hack of cigarettes. Is that really? Something that's related to your skills to drive cross country to do other types of jobs to be working construction. Probably not so the relationship of the.