criminal background check

Effective January 1, 2018 California employers can no longer ask an applicant for employment to disclose information about criminal convictions.  The new law (added as Section 12952 to the Government Code) applies to employers with 5 or more employees.  Once an offer of employment has been made, employers can conduct criminal history background checks, but only when the conviction history has a “direct and adverse relationship with the specific duties of the job,” and requires certain disclosures to the applicant if employment is denied based on the background check.  This Friday’s Five covers five areas of the new law that California employers should be aware of when hiring employees:

1. Employers may not include on any application for employment “any questions that seeks the disclosure of an applicant’s conviction history.”

2. Employers may not inquire into or consider this conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.

3. Employers can only research certain areas of an applicant’s background after a conditional offer has been made.

Employers may not “consider, distribute, or disseminate information” relating to any of the following areas when conducting a conviction history background check:

(A) Arrest not followed by conviction, except in some limited circumstances set forth in Labor Code section 432.7.

(B) Referral to or participation in a pretrial or posttrial diversion program.

(C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

4. If an employer intends to deny employment based on the applicant’s conviction history, it must make an “individualized assessment” if the conviction history “has a direct and adverse relationship with the specific duties of the job.

In making his determination, the employer shall consider all of the following:

(i) The nature and gravity of the offense or conduct.

(ii) The time that has passed since the offense or conduct and completion of the sentence.

(iii) The nature of the job held or sought.

The employer is not required to records these results of this individualized assessment in writing. However, employers that also must comply with local city and county background checks must be careful to follow those requirements as well.  For example, Los Angeles’ ordinance requires that employers provide this assessment in writing to applicants. 

5. If the employer preliminary disqualifies the applicant based on a conviction history, the employer is required to provide written notice to the applicant.

The notice must contain all of the following items:

(A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.

(B) A copy of the conviction history report, if any.

(C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.

The applicant then has five business days to respond to the notice before the employer makes a final decision.  If the employee responds within this time limit, and states that they dispute the accuracy of the conviction history report and is in the process of obtaining evidence to support their position, the applicant will have an extra five business days to respond.  The employer must consider the information provided by the applicant before making a final decision.

If the employer makes a final decision denying the applicant employment solely or in part because of the applicant’s conviction history, the employer is required to provide a written notice to the applicant containing the following:

(A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.

(B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.

(C) The right to file a complaint with the Department of Fair Employment and Housing.

In addition to this new law, California employers need to be sure they are in compliance with the Federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) when conducting any background checks.

LA City HallLos Angeles City begins enforcement on July 1, 2017 of its Fair Chance Initiative for Hiring Ordinance that prohibits employers from seeking criminal background information prior to offering a job to applicants.  The ordinance was effective in January 2017, but to give employers time to become compliant with the new hiring prohibitions, the City delayed enforcement until July 1.  This Friday’s Five discusses five issues Los Angeles City employers need to understand prior to the July 1 deadline:

1. Employers are prohibited from inquiring into a job applicant’s criminal history until a conditional offer of employment has been made.

Employers cannot conduct any “direct or indirect” activity to gather criminal history from or about any applicant using any form of communication, including on application forms, interviews or Criminal History Reports.  This includes searching the internet for information pertaining to the applicant’s criminal history.

2. Review the Fair Chance Initiative for Hiring Ordinance Guideline for Employers

The City published a flow-chart setting out a guideline for employers to follow to comply with the Ordinance.

Employers should review this flow-chart, review the Ordinance, and if they will be conducting background checks implementing processes to ensure they are complying with the Ordinance.

3. Post the notice to applicants and employees and ensure documents are retained for three years.

Employers are required to post a notice informing applicants of the law at each workplace, job site or other location in the City of Los Angeles under the employer’s control and visited by the applicants.

In addition, employers are required to retain applications and related information for three years.

4. Develop a process to comply with ordinance if revoking conditional offer based on criminal history report.

The City published a sample notice to rescind employment offer that employers can utilize to comply with the Ordinance after an employee’s criminal history background check reveals information that may allow the employer to revoke the conditional offer of employment.  The sample letter can be downloaded here.

The City also published an individual assessment and reassessment form for employers to use in conducting the required review of whether the employee’s criminal history is job-related and can be used to revoke the offer of employment.  Employers should review this document, understand the required steps to comply with these requirements, and seek help from qualified employment lawyers if/when this assessment must be done in making a determination of whether to revoke a job.

5. Place disclosures in all job-wanted ads to ensure compliance with ordinance.

The Ordinance requires that employers state “in all solicitations or advertisements seeking Applicants for Employment that the Employer will consider for employment qualified Applicants with Criminal Histories in a manner consistent with the requirements of this article.”

The City has proposed the following sample language to comply with this requirement:

We will consider for employment all qualified Applicants, including those with Criminal Histories, in a manner consistent with the requirements of applicable state and local laws , including the City of Los Angeles’ Fair Chance Initiative for Hiring Ordinance.

It is important to remember that this requirement applies to all online advertisements and solicitations.

Employers should review the City’s website for more information as well as the City’s Frequently Asked Questions.