Name That Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

Once the applicant qualifies through the pre-screen process, a community college district can inquire about felony convictions that are outside of the ones enumerated in the Education Code. However, the District needs to be careful and thorough when doing so. The EEOC has provided guidance regarding the consideration of criminal offenses for job applicants. Generally, employers are to apply the factors set forth in Green v. Missouri Pac. R. Co. (8th Cir. 1977) 549 F.2d 1158, 1159. The Green factors are: 1. The nature and gravity of the offense or conduct; 2. The time that has passed since the offense, conduct, or completion of the sentence; and 3. The nature of the job held. Once the District has covered three Green factors, it should also give the applicant an opportunity to explain the circumstances surrounding the conviction, what has transpired after the conviction, etc. After all of this, the District can then decide, based on the body of information it has, whether the prior conviction can be used as the basis for not offering the applicant a job. We recommend that as a matter of practice, the District notify an applicant in writing when criminal history information is used to deny an offer of employment. In doing so, the District should note which conviction(s) is being relied upon in making that decision, attach a copy of the conviction history report (if applicable) and provide five (5) business days for the applicant to respond to the notice before the decision in final. If the decision is made final, another written notice must be sent to the applicant. Doing this helps mitigate any potential claims that an applicant may have that the District improperly used prior conviction information during the hiring process.

2. A CADEMIC E MPLOYEES

a. Sex Offenses Education Code explicitly forbids community college district’s governing boards from employing, or retaining in employment, persons who have been convicted of any sex offense. 273 The Education Code defines “sex offenses” 274 as:

 Any offense defined in Penal Code sections 261.5, 266, 267, 285, 286, 288, 288a, 647.6, or former 647a, 261 subdivisions (a)(2) and (3), 262 subdivisions (a)(1) and (2), or 647 subdivisions (a) and (d);  Any offense defined in former subdivision 5 of former Section 647 of the Penal Code repealed by Chapter 560 of the Statutes of 1961, or any offense defined in former subdivision 2 of former Section 311 of the Penal Code repealed by Chapter 2147 of the Statutes of 1961, if the offense defined in those sections was committed before September 15, 1961, to the same extent that such an offense committed before that date was a sex offense for the purposes of this section before September 15, 1961;  Any offense defined in Penal Code section 314 committed on or after September 15, 1961;

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 91