Under a new law which took effect July 1, 2017, California employers are no longer be allowed to consider an applicant’s criminal history when making employment decisions if doing so will have an adverse impact on applicant in a legally protected class (race, national origin, or gender) as defined by the Fair Employment and Housing Act. The new regulations limit an employer’s ability to inquire into prior arrests of an applicant which did not result in a criminal conviction. The new law applies to employers with five or more employees. An employer can consider criminal history when hiring an applicant if they can establish the practice is job related and consistent with business necessity.
Applicants and employees have the burden of proving an employer’s criminal background check policy has an adverse impact on a protected class. An employer must demonstrate that their background check policy is job-related and consistent with business necessity. An employer must consider the following factors when deciding job relatedness and business necessity:
- 1. The extent of the offense and conduct;
- 2. The time that has passed since the conduct occurred and the applicant’s completion of his/her sentence; and
- 3. The type of job sought in relation to the above referenced factors.
An employer must conduct an individualized assessment before making an employment decision. Proper notice must be afforded to an applicant as well to rebut an employer’s claim.
Employers can no longer consider the following forms of criminal history when making hiring decisions:
- 1. Arrest or detention that did not result in a conviction;
- 2. Participation in a pre-trial or post-trial diversion program;
- 3. A conviction that has been ordered sealed, expunged, or statutorily eradicated under state law;
- 4. An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was considered a juvenile; and
- 5. A non-felony conviction for the possession of marijuana that is more than two-years old.
The City of Los Angeles has also imposed further limitations on employers (Fair Chance Initiative) using criminal history records when making hiring decisions. Employers in Los Angeles must remove “ban the box” (questions inquiring about criminal convictions) questions from employment applications. Los Angeles Fair Chance Initiative also prohibits employers from inquiring about an applicant’s criminal conviction history until after a conditional offer of employment has been made.
An employer can withdraw a conditional offer only after completing the Fair Chance Process. The process requires an employer to draft a written assessment illustrating how the job seeker’s criminal history poses a risk to the duties of the position sought as defined in the job bulletin. An employer must notify the applicant when an adverse employment decision is made based on criminal history. The applicant will have a reasonable opportunity to respond with evidence rebutting the employer’s claims. An employer cannot withdraw the job offer until five business days after the applicant receives written notice.
Employers can be assessed penalties for violating the Fair Chance Initiative. The maximum penalty per occurrence is up to $2,000. Exceptions to the Fair Chance initiative include the following:
- 1. Employers who are required by law to review an applicant’s criminal history
- 2. Positions in which an applicant will possess or use a firearm
- 3. Positions as defined by law which cannot be held by a person with a criminal record
- 4. Employers that are prohibited by law from hiring persons with criminal convictions
A Fair Chance Ordinance has also been enacted by the City and County of San Francisco. Employers should review their hiring practices to ensure they are in conformance with the new criminal history laws. Standard check boxes and questions on job applications regarding criminal history may need to be revised. California employers must continue to comply with federal, state and local laws governing employee background checks.