Your Rights As Employee

California Laws on Employer Use of Arrest and Conviction Records

California's statewide ban-the-box law protects applicants with criminal records.

Updated By Sachi Barreiro, Attorney https://www.nolo.com/legal-encyclopedia/california-laws-employer-use-arrest-conviction-records.html

If you are among the estimated one in three Californians with a criminal record, you might worry about how it will affect your job search. Surveys show that a majority of employers perform criminal background checks when hiring for at least some positions. It's also common for employers to ask about criminal history on a job application, often ending the process for many applicants before it has begun. Fortunately, job seekers with criminal records have some strong protections under California law.

California's Ban-the-Box Law

On January 1, 2018, California's ban-the-box law will take effect. Amendments to California's Fair Housing and Employment Act (FEHA) will make it illegal for private and public employers with five or more employees to ask about criminal history until the later stages of the application process. The purpose of the law is to encourage employers to assess each applicant's fitness for the job, rather than categorically denying employment to those with a criminal past.

Until then, California's existing ban-the box law for government employers only is still in effect. However, this law will be repealed as of January 1, 2018, and government employers will be covered under the new law.

Before a Conditional Offer of Employment

As its name suggests, the new law requires employers to remove a question that is commonly found on employment applications: Have you ever been convicted of a felony? Applicants can no longer be asked to check "yes" or "no" to this question. In fact, California employers cannot ask about, look into, or consider criminal history at all until the applicant has received a conditional offer of employment.

After a Conditional Offer of Employment

Once the employer makes a conditional offer of employment, it may ask about and consider the applicant's conviction records. Some records, including arrest records that did not lead to conviction, are off limits at any point in the hiring process (see, "Criminal Records That Employers May Never Consider," below).

However, before denying employment based on a conviction record, the employer must conduct an individualized assessment as to whether the conviction has a "direct and adverse relationship" with the specific job duties of the position. At a minimum, the employer must consider the following:

• the nature and severity of the offense
• how long it's been since the applicant committed the offense and served his or her sentence, and
• the nature of the job the applicant is applying for.

For example, suppose an applicant has a conviction related to prescription drug abuse from five years ago, but has completed rehab and been sober since. Depending on the circumstances, the conviction might be a reason to deny employment for a position at a pharmacy but not for a position at a call center.

 Providing Notice and an Opportunity to Respond

If, after completing this inquiry, the employer decides not to hire the applicant, the employer must provide the applicant with a written notice of its decision. The notice must:

• specify the conviction that was the basis for the decision
• provide a copy of the conviction history report, if the employer has one, and
• explain the applicant's right to respond with favorable evidence by a certain deadline.

The applicant must be given at least five business days to challenge the accuracy of the employer's information or to provide mitigating evidence that lessens the impact of the conviction. For example, the applicant might submit evidence of completion of a drug rehabilitation program or the applicant's efforts to make amends for the crime. If the applicant notifies the employer within five business days that he or she is taking steps to gather evidence, the applicant must be given an additional five business days to respond to the notice.

Notice of the Final Decision

The employer must consider any information provided by the applicant before making a final decision. If the final decision is to deny employment, the employer must provide written notice of this decision. The notice must specify the procedure for challenging the decision, if the employer has one, as well as the right to file a complaint with the California Department of Fair Employment & Housing (DFEH).

Criminal Records That Employers May Never Consider

In California, certain types of criminal records are off limits for employers. Employers may not ask about or consider the following at any time during the hiring or employment process:

• Arrest records. Employers may not ask an applicant about prior arrests that did not lead to convictions or seek or use records related to such arrests. Employers may ask applicants about arrests that did lead to conviction and arrests for which the applicant is awaiting trial (for example, because the applicant is out on bail or has been released on his or her own recognizance pending trial).
• Diversion programs. Employers may not ask about an applicant's referral to or participation in a pretrial or post-trial diversion program.
• Sealed records. Employers may not ask about convictions that have been sealed, expunged, or statutorily eradicated.
• Certain marijuana offenses. Employers are prohibited from asking about non-felony convictions for marijuana possession that are more than two years old.
• Juvenile records. Employers may not ask applicants about juvenile records relating to arrest, detention, processing, or adjudication while the applicant was subject to the juvenile court system. California does not consider juvenile court decisions to be "convictions" that employers could otherwise inquire about.

Background Check Rules

 If an employer wants to order a criminal background check from a third party, it must also comply with the federal Fair Credit Reporting Act (FCRA). Among other things, the FCRA requires employers to get the applicant's written consent beforehand and provide certain notices if the employer decides not to hire the applicant based on the contents of the report. (To learn more about the FCRA, see our article on getting hired with an arrest or conviction record.)

California has a similar law to the FCRA, requiring employers to obtain written consent and give notice to the applicant before deciding not to hire him or her based on the information in the report. Under California law, arrest and conviction records that are more than seven years old cannot be included on a background check report.

In general, these laws apply when an employer hires a third party to conduct the background check, not when it conducts the investigation in-house. However, California has an exception for public records searches. Any employer that searches public records as part of a background check must still follow certain steps. For example, the employer must supply a copy of the record to the applicant within seven days, unless the applicant waived this right on the job application (or some other written form provided by the employer). If the employer decides not to hire the applicant based on the record, it must supply a copy of the record to the applicant, even if the applicant waived the right to receive a copy.

Antidiscrimination Laws

Federal and California employment laws prohibit most employers from discriminating against applicants based on certain characteristics, such as race and ethnicity. Because arrest and incarceration rates are disproportionately higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination. (See our article on California employment discrimination laws for more information.)The Equal Employment Opportunity Commission (EEOC), the agency that enforces federal discrimination laws, has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. According to the EEOC, employers should also give applicants with a criminal record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense. California's ban-the-box law essentially incorporates these guidelines into its procedures. The California Fair Employment & Housing Council, the agency that enforces state discrimination laws, has also issued guidance for employers on how to avoid discrimination when considering an applicant's criminal record. If an employer's practice of considering criminal history has an adverse impact on a protected class, it must be job-related and consistent with business necessity. In general, this means that the employer's policy must actually consider whether the criminal history would make the applicant unfit for the position or would pose an unacceptable level of risk. If the employer learned about a conviction from any source other than the applicant, it must provide notice to the applicant and a reasonable opportunity for the applicant to show the conviction is inaccurate. Again, many of these procedures are now required by California's ban-the-box law.

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