In 2018, California eliminated its "check the box" system of screening applicants with criminal backgrounds. Meaning, under California law, it is against the law to ask an applicant any questions regarding an applicant's criminal history during interviews or on the job application itself. Employers should update their hiring procedures to ensure compliance with California hiring laws.
What is a criminal background?
It is important to understand what "criminal background" means to avoid accidentally making illegal hiring inquiries. "Criminal background" is a broad term and includes convictions, arrests or detentions that did not result in a conviction, referral to and participation in a pretrial or post-trial diversion program, or anything involving arrest records.
What are your rights as an employer?
As an employer, you may not ask any questions about an applicant's criminal history during the application interview process. You may, however, inquire into the applicant's criminal history after a conditional offer of employment has been given to the applicant. At this point, you may require passing a criminal background check as a condition of employment. During the applicant's background check, you are legally allowed to inquire into whether the applicant has a criminal history. It is very important to note that this may only be done after a conditional offer of employment has been given to the applicant. This means that the applicant will be a hired employee once passing the background check. If your business is still conducting interviews with other applicants for the same position during the background check period, then you run the risk of making improper inquiries into the applicant's criminal background under California law.
I offered the applicant a conditional offer of employment, and it turns out the applicant has a criminal background. Now what?
If the applicant fails the criminal background check established as a condition for employment because of the applicant's criminal background, you must then make an individual assessment of whether the applicant's criminal history has a direct and adverse relationship with the specific duties of the job that justifies denying the applicant the position. Specifically, you, as the employer, must consider:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and completion of the sentence associated with the offense, if any; and
- The nature of the job held or sought
If after performing the individual assessment, you feel the applicant's criminal history renders the applicant unfit for the position sought, then you must notify the applicant of this decision in writing and allow the applicant at least five days to respond before you may make a final employment decision. Additionally, if you feel the applicant is unqualified for the position sought solely because of the applicant's criminal history, then you must also notify the applicant of the decision, and provide the applicant with any existing procedure you have for the applicant to challenge the decision or request consideration.
It is worth noting that these laws do not affect businesses that are required by law to obtain information regarding an applicant's criminal history. Nor do these laws apply when the applicant would be required to possess a firearm during his or her employment.
If you have any questions regarding California's new hiring rules, do not hesitate to contact a business attorney.
by Jason Eldred