Are Felons the Next Protected Class?

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

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.

Personal Injury Claims against the Government

Under early British common law, the antecedent to American legal principles, lawsuits against the government were not permitted. At the time, all law was the purview of the sovereign and no monarch was interested in allowing themself to be sued. As more democratic systems of government developed, the argument evolved. In early American law, claims against the government were bared on the ground that the government was essentially composed of the people and it seemed antithetical to principals of collective action to allow the negligence of a single government employee to drain the public coffers.

This governmental immunity from liability was first waived in California with the passage of limited express exceptions in 1923. During the years that followed, common law developments and judicial decisions somewhat expanded the short list of exceptions, particularly with regard to dangerous properties. The result was a complex and uncertain collection of exceptions and exceptions to exceptions that produced varying outcomes even among similar cases.

Tort Claims Act

In 1963 the California legislature passed the California Tort Claims Act, now codified in Government Code 815 et. seq., to level the playing field. The comprehensive law eliminated most of the previous body of law with regard to governmental immunity and replaced it with a unified set of requirements that every potential plaintiff must follow before suing a public entity. Principal among the new regulations was a requirement that an injured party file an official claim with the entity in question no longer than six months after learning of the injury. Only after an agency denied that claim, either in whole or in part, could a person continue with a traditional lawsuit against the government.

What kind of lawsuits qualify?

The Tort Claims Act also specifically defined the circumstances under which a governmental entity could be held liable for personal injury. Specifically, the following five elements must generally be present.

1. The injury must occur on public property


2. The property must be dangerous


3. The risk of injury must be reasonably foreseeable


4. The dangerous condition must have been created by the negligence of a government employee acting within the scope of employment or the agency must have had reasonable notice of the danger and time to correct it.

In addition, a plaintiff must be able to prove that the dangerous condition was the proximate cause of the injury; a legal term-of-art that essentially means the injury must be an expected and normal result of the dangerous condition.

Suing government employees?

Under the law, government employees are generally liable for their actions in the same way as are private citizens. However, the government will step in to cover the damages of a liable employee if the plaintiff’s injury resulted from actions the employee took while acting in the scope of employment. However, there are a number of specific immunities and other requirements that apply to certain situations so careful investigation of the underlying circumstances is imperative.

Filing a claim

In order to bring a lawsuit against the government under the Tort Claims Act, the injured person must file a sufficient claim with the public agency in question within six months of learning of the injury. This requirement is somewhat complex in that claims must be legally sufficient and properly filed. However, public agencies are required to simplify the process somewhat by maintaining a public notice regarding how to file a claim against that agency. In addition, agencies must respond to claims within certain specific time frames and their failure to either post a sufficient notice or respond timely to claims may waive their immunity under the law.  This area of the law is complex and care must be taken when preparing and filing claims.

Childhood Sexual Abuse

Under a recent change to the Tort Claims Act, claims for injuries resulting from sexual abuse which took place after January 1^st, 2009 are handled differently than most other types of injuries. Such claims have an extended filing requirement.

Mandatory Duty

Certain public agencies are required by law to take steps to prevent some types of injury to the public. In cases where an agency fails to fulfill its duty under such a law, injured parties may have additional expanded options for recovering from the agency. However, the plaintiff’s injury must be of the type the agency was supposed to protect against.

Bottom line

Suing the government is not easy. A number of specific legal hurdles have been developed to give governmental entities special protection against liability. If you have been injured on public property or by a government employee, you may have even less time than usual in which to take legal action. You cannot afford to wait until you are feeling better or until you have all the facts collected before starting the legal process. The good news is that there are ways to recover from a public agency if you fulfill all the prerequisites such as timely filing a completed claim with the agency. Act quickly to protect your legal rights.