Criminal Background Checks

The new law regarding criminal background checks has some employers confused so let’s go over it step-by-step.

Effective January 1, 2018, this new law amends the California Fair Employment and Housing Act to prohibit employers with 5 or more employees from inquiring about criminal history on an employment application and/or at any time (including the interview process) prior to making a conditional offer of employment.

This law also requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of:

  1. Whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job sought;
  2. You must take into consideration the nature and gravity of the offense;
  3. The amount of time that has passed;
  4. The nature and duties of the job sought by the applicant.

An employer who makes a preliminary decision to deny employment based on that individualized assessment must provide the applicant:

  1. A written notification of the preliminary decision that identifies the disqualifying conviction(s);
  2. Inform the applicant that he or she may provide a response that includes evidence challenging the accuracy of the conviction information and/or demonstrating rehabilitation or other mitigating circumstances;
  3. The employer also must provide a copy of the conviction history report, if any. (The employer may, but is not required to, explain or justify the reasoning for its preliminary decision.);
  4. The applicant must be provided with at least 5 business days to respond (before the employer can make a final decision on employment);
  5. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the applicant must be given an additional 5 business days to respond to the notice;
  6. The employer is required to consider any information submitted by the applicant before making a final decision;
  7. If a final decision is made to deny employment, the employer again must provide written notification to the applicant and inform the applicant of his or her right to file a complaint with the Department of Fair Employment and Housing and/or of any internal appeal rights the applicant may have to challenge the decision.  (Again, the employer may, but is not required to, explain its justification/reasoning for its final decision.).

This new law does not apply in those limited circumstances where a public or private employer is required by law to conduct a criminal background check or to restrict employment based on criminal history.  Covered California employers should familiarize themselves with the requirements of this new law and modify their employment applications and hiring processes accordingly.

NOTE: I will be speaking on the “Impact of Domestic Terrorism on the Workplace” on Monday, March 5th, 2018 from 10 am to 11:30 am at the Manhattan Beach Library. This opportunity is being presented by the Manhattan Beach Chamber of Commerce.

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