California employers may no longer ask job applicants or potential hires about criminal convictions during the hiring process, but they may still rescind conditional offers upon learning about convictions. New legislation effective January 1, 2018 prohibits employers with five or more employees from askin about criminal convictions under three circumstances:
– on employment applications;
– before making a conditional offer; and
– when conducting background checks (an employer cannot consider, distribute, or disseminate information about prior arrests not leading to convictions when conducting background checks).
This new legislation is a “ban the box” law. Ban the box is an international movement to persuade employers to remove the check box asking applicants if they have a criminal record from employment applications.
First, the employer must assess whether the applicant’s criminal history has a “direct and adverse relationship” to the specific duties of the job. In making this determination, the employer must consider the type and seriousness of the offense and the related conduct, how much time has passed since the conviction, and the type of the position the applicant seeks. Second, the employer must notify the applicant of their preliminary decision to withdraw the conditional offer based upon conviction information, give the applicant a copy of the report containing conviction information, and explain the applicant’s right to respond. The employer must provide a mandated five business days to respond.
The applicant then has a right to dispute the conviction history, so long as it is done within a window of five business days. Once the applicant responds, the employer may consider whether to hire the applicant. If the employer decides not to hire based on the applicant’s criminal history, the employer must notify the applicant in writing and include the final denial, information relating to any existing procedure to challenge the decision or request reconsideration, and the right to file a complaint with the California Department of Fair Employment and Housing.
For more information on California employment law, contact attorney Drew E. Pomerance today.