You might be concerned about the impact of a criminal history on your job search if you are one of the three Californians with such a record. According to surveys, most employers conduct criminal background checks before hiring for any position. Employers are more likely to ask about criminal records on job applications, which can often end the hiring process for many applicants. California law provides strong protections for job applicants with criminal records.
California's Ban-the-Box Law
California's ban the box law will go into effect on January 1, 2018. California's Fair Housing and Employment Act Amendments (FEHA), will make it illegal to ask about criminal records for private and public employers who have five or more employees, until the last stages of the application process. This law encourages employers to evaluate each applicant's suitability for the job and not to deny employment to anyone with a criminal record.
California's ban-the-box law that applies to government employers is still in force. This law will be repealed on January 1, 2018 and government employers will be included under the new law.
Before you accept a conditional offer of employment
The new law, as its name implies, requires employers to remove an often found question on employment applications: Have your ever been convicted for a felony? This question can no longer be answered by applicants. California employers can't ask about, investigate, or consider criminal histories until an applicant has been offered a conditional job.
After receiving a Conditional Employment Offer
After the employer has made a conditional offer, it might ask about the applicant's conviction record. Certain records, even arrest records that didn't lead to conviction, are not allowed at any stage of the hiring process. (See "Criminal Records Employers May Never Consider" below).
Employers must make an individual assessment of whether there is a direct and adverse relationship between the conviction and the job duties before they deny employment. The employer must at least consider the following:
• The nature and severity the offense
• How long ago has the applicant been convicted of the offense?
• The nature of the job which the applicant is applying.
Let's say, for example, that an applicant was convicted of prescription drug abuse five years ago but has since completed rehabilitation and is sober. The conviction could be grounds for denial of employment in certain circumstances. It might not apply to a job at a call center, but a position at the pharmacy.
Providing Notice, and an Opportunity to Reply
If the employer does not hire the applicant after the inquiry is completed, it must give written notice to the applicant. The notice must be in writing.
• Specify the conviction that was the basis of the decision
• Provide a copy of your conviction history report, if you have one.
• Explain the applicant's rights to reply with positive evidence within a specified deadline
At least five business days must be allowed for the applicant to contest the accuracy of employer information or provide evidence to mitigate the effect of the conviction. The applicant could submit evidence that he or she has completed a drug rehabilitation program, or that he or she is trying to make amends for their crime. The employer must be notified by the applicant within five days of the applicant notifying them that he or they are taking steps to collect evidence. If the applicant does not respond to the notice, the employer has five additional business days.
Final Decision
Before making a final determination, the employer must review all information submitted by the applicant. The employer must give written notice if it decides to terminate employment. If the employer has a procedure to challenge the decision, the notice must state that it is. The notice also should include the right for the employee to file a complaint with California Department of Fair Employment & Housing (DFEH).
The Most Common Records Employers Will Never Consider
Employers in California are prohibited from obtaining certain types of criminal records. The following are prohibited from being asked about by employers during hiring or employment.
• Arrest records. Employers are not allowed to ask applicants about previous arrests that didn't result in convictions. They also cannot seek or use records regarding such arrests. Employers can ask applicants about arrests that led to convictions and arrests for the purpose of awaiting trial (e.g., because the applicant has been released on bail or on his own recognizance while awaiting trial).
• Diversion programs. Employers are not allowed to ask applicants about their participation or referral to a pre- or post-trial diversion.
• Sealed records. Employers are not allowed to ask about convictions that were sealed, expunged or statutorily wiped out.
• Some marijuana offenses. Employers cannot ask about non-felony convictions in marijuana possession more than two years ago.
• Juvenile records. Employers cannot ask applicants about juvenile records that relate to arrest, detention or processing. California doesn't consider juvenile court decisions "convictions" that employers might otherwise inquire about.
Background Check Rules
Employers must comply with the federal Fair Credit Reporting Act (FCRA) if they want to request a criminal background investigation from a third party. The FCRA mandates that employers obtain the written consent of applicants and give notices to those who decide not to hire them based on the report. For more information about the FCRA, please see our article on how to get hired if you have a conviction or arrest record.
California has a similar law as the FCRA. Employers must obtain written consent from the applicant and provide notice before making a decision to not hire them based on the report. California law prohibits the inclusion of arrest or conviction records older than seven years in a background check report.
These laws generally apply to employers who hire a third party to do background checks, and not when the employer conducts the investigation internally. California does have an exception for public records searches. Employers that search public records for background checks must follow certain steps. The employer must provide a copy within seven days to any applicant who searches public records as part of a background check, unless the applicant waives this right in the job application or another written form. The employer must provide a copy of the record to applicants if it decides to not hire them based on the record.
Antidiscrimination Laws
Employers cannot discriminate against applicants because of certain characteristics under federal and California employment laws. Employers who have a policy of exclusion for all applicants with criminal records could be accused of discrimination because they are more likely to arrest and incarcerate African Americans than Latinos. (See our article on California background check for more information.)
The Equal Employment Opportunity Commission, which enforces federal discrimination laws has published guidance on how employers can screen applicants whose criminal records present an unreasonable risk of discrimination. Employers should give applicants with a criminal history the opportunity to explain their circumstances and provide information that shows why they should not be excluded based upon the offense. These guidelines are incorporated into California's ban the-box law.
California Fair Employment & Housing Council is the state agency that enforces discrimination laws. It has issued guidance to employers about how to avoid discrimination in evaluating criminal records. Employers must not consider criminal history if it has an adverse effect on a protected group. This means that an employer's policy must consider whether the applicant's criminal history makes them unfit for the job or poses unacceptable risk. Employers must inform applicants if they learn of a conviction from someone other than the applicant. They also have to give the applicant a reasonable chance to prove that the conviction is not true. California's ban on the box law now requires many of these procedures.