SEP 2016

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Page 98 of 124 96 DAYSPA | SEPTEMBER 2016 misdemeanor for shoplifting, you might not want to rule that person out. On the other hand, if he was convicted for driving under the infl uence, that's a different story.) LAW OF THE LAND We see the approach a federal regulatory agency takes, but it's important to note that many state laws also limit how criminal back- ground checks may be used in hiring. On this subject, California and South Carolina are generally proffered as examples on either end of the spectrum. In California, an applicant cannot be asked either in person or in writ- ing about a prior arrest that did not lead to a conviction. If an em- ployee was charged and chose to participate in a diversion program they cannot be asked about that ei- ther. California's employers cannot ask about records that have been expunged, or about certain older marijuana convictions. Because the employer isn't permitted to ask about these issues, it is self-evident that, under California law, a person cannot be denied employment based on these issues, even if they appear in a criminal background report. In contrast, other than for re- gulated or licensed professionals, South Carolina imposes absolutely no restrictions on employers with regard to making such inquiries, nor in using a criminal history in employ- ment decisions. Still, California's progressive atti- tude pales in comparison to Hawaii, where it's illegal for an employer to discriminate in hiring, fi ring, compen- sation, or other terms and conditions of employment based on arrest or court records. In effect, what Hawaii has done is treat convicted criminals as a protected class in the same way that race and sex are protected in the employment context. As a business owner, you must be aware of both your state and federal employment laws. If federal laws provide more protection for em- ployees, then that's the standard to be followed; if state laws provide more protection, then they super- sede federal laws. Employment laws vary within each of the 50 states. This area is complex and often requires judg- ment calls. If you're unclear as to which laws apply or about how a law should be applied, don't guess: Consult an attorney who specializes in employment law. Michael L. Antoline, JD, is a legal affairs writer and Champaign, Illinois- based attorney. Information in this column is general. Seek legal counsel for specifi c cases. LEGAL PAD

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