If you have five or more employees, California law requires that you follow strict provisions when conducting criminal background checks as part of your hiring process. There are, however, a few exceptions, such as positions required by law to have the background check.
The ban-the-box law applies to employers with five or more employees. It does not apply to the following types of jobs:
- Positions for which a state or local government agency is required by law to conduct a conviction history background check;
- Positions with a criminal justice agency;
- Farm labor contractors (as defined in Labor Code sec. 1685); or
- Positions in which an employer is required by any state, federal or local law (including the Securities Exchange Act) to check criminal background for employment purposes or to restrict employment based on criminal history.
- Employers who must conduct criminal background checks to comply with various state or federal laws should consult with legal counsel.
Prohibited Inquiries Before a Conditional Offer
You cannot seek conviction history before a conditional job offer. Covered employers cannot:4
- Include on a job application any question that seeks the disclosure of the applicant’s conviction history at any time before a conditional offer of employment has been made.
- Inquire into or consider the conviction history of an applicant until after a conditional offer of employment has been made.
Know When You Can Conduct a Criminal Background Check
You cannot ask about criminal history information on job applications or inquire about or consider criminal history at any time before a conditional offer of employment has been made.
Before this conditional job offer has been made, never:
- Require an applicant to consent to a criminal background check;
- Ask applicants about their criminal history on a job application, during a job interview or at any other time;
- Seek information about an applicant’s criminal history from any source; or
- Consider an applicant’s criminal history.
Once you make a conditional job offer, you may legally obtain a candidate’s criminal background if you follow the specific notice requirement outlined below, and don’t make off-limit inquiries. Under California law, some criminal history information is almost always off limits, such as inquiries into juvenile criminal history or expunged convictions.
Restrictions After a Conditional Offer
Once you have made a conditional offer of employment, you may seek conviction history information if you follow the process and notice requirements described below.
However, some criminal history information is off limits.
An employer generally cannot consider, distribute or disseminate information about any of the following while conducting a criminal background check in connection with a job application:6
- An arrest not followed by a conviction, except when the applicant is out on bail or his/her own recognizance pending trial, and except for jobs at specified health facilities;
- A referral to or participation in a pre-trial or post-trial diversion program (a criminal diversion program is a work or education program as part of probation); and
- A conviction that has been sealed, dismissed, expunged or statutorily eradicated pursuant to law. (Exceptions exist where certain employers of more sensitive jobs legally must consider specific convictions to be grounds for dismissal from the application process.)
- A new law effective January 1, 2019 clarifies the circumstances when an employer is prohibited from asking an applicant about criminal convictions that have been expunged, judicially dismissed or ordered sealed.7The new law limits employer inquiries to “particular convictions” where conviction of a crime would legally prohibit someone from holding that job.
A “particular conviction” is defined in the new law as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.” Employers cannot use information they may receive in a criminal history report to exclude employees who have any expunged, judicially dismissed or sealed conviction on their record. Rather, employers may only consider crimes that would have a direct impact on an applicant’s ability to do the job. For example, an applicant for a job with a bank could not have any prior convictions of fraud or money-laundering even if they were expunged, dismissed or sealed.
Keep in mind that the Labor Code also prohibits employers from inquiring into an applicant’s juvenile criminal history information and from using such information as a factor in determining any condition of employment, such as hiring or termination.
Employers also must be careful that any use of criminal history information does not result in discrimination. California FEHA regulations prohibit employers from considering criminal information in employment decisions if doing so would have an “adverse impact” on a protected class. Employers will need to show that the criminal information is job related and consistent with business necessity. These regulations can be found on the Department of Fair Employment and Housing website.
Before Conducting a Background Check
Whether you’re using an investigative consumer reporting agency to conduct a check or doing a public records search yourself, some paperwork is necessary.
If you’re using an investigative consumer reporting agency:
- Tell the applicant in writing that you intend to obtain an investigative consumer report and obtain the applicant’s authorization.
- Certify to the agency conducting the search that the applicant disclosure has been made, authorization has been obtained and that the information will not be used in violation of any state or federal law.
If you’re not using an agency to obtain the information, you must give the applicant a copy of public records you obtain within seven days of receipt — unless the applicant waives his/her right to a copy.
Make a Preliminary Decision Based on the Results
If the results did not affect your decision to hire the applicant, inform him/her that the conditional offer is now an official offer and move on to offering official employment.
If the results did affect your decision and you intend to deny the applicant the position, you must first conduct an individualized assessment.
Conduct an Individualized Assessment
If the criminal background check results affect your hiring decision, you must assess whether the conviction history has a direct and adverse relationship on the job’s specific duties that justifies denying the position to the applicant.
At a minimum, you must consider:
- The nature and gravity of the offense or conduct;
- The time that’s passed since the offense or conduct and completion of the sentence; and
- The nature of the job held or sought.
You can put the results of the individualized assessment in writing, but it is not required.
Notify the Applicant of Intended Decision to Deny Employment
After the individualized assessment, you may still wish to deny employment. Before doing so, you must:
- Notify the applicant in writingof the intended decision.
- Give the applicant at least five business daysfrom receipt to present evidence challenging the accuracy or the conviction and/or evidence of mitigating factors or rehabilitation.
- Give the applicant five additional business days if they are disputing the accuracy of the conviction and taking steps to provide evidence to support the dispute.
If you used an investigative agency to obtain the criminal background check, you must give an additional notice to the applicant as required by the Fair Credit Reporting Act and the California Investigative Consumer Reports Act.
Consider an Applicant’s Evidence
You are required by law to consider information submitted by the applicant before making a final decision about whether to hire him/her.
If after considering the information you plan to hire the applicant, inform the individual that the conditional offer is now an official offer and move on to offering official employment.
If the applicant’s information did not change your decision and your final decision is still to deny the applicant the job, you must give a final written notice to the applicant.
Notify Applicant of Final Decision
Provide the applicant with written notice of any final decision to deny employment because of the individual’s criminal background. The notice must contain certain information required by law.
If you used an investigative agency to obtain the report, you must give an additional notice to comply with the Fair Credit Reporting Act and the California Investigative Consumer Reports Act.
If you did not use an investigative agency to obtain the information, you must provide a copy of the public records you obtained, even if the applicant previously waived his/her right to receive copies.Log in or Register to save this content for later.