New California Laws Severely Restrict Inquiries
about Job Applicants’ Criminal History
Is your business asking applicants about their criminal history in making hiring decisions? California state law and municipal regulations continue to expand “ban the box” laws, which restrict an employer’s ability to ask about an applicant’s criminal history when making hiring decisions. Recently, the City of Los Angeles enacted a new law, the Fair Chance Initiative, which prohibits any employer with 10 or more employees located and doing business in the City of Los Angeles asking about requiring disclosure of an applicant’s criminal history, unless a conditional job offer has actually been made. In addition, it is unlawful for an employer to take action against an applicant if a conditional job offer has been made, once learning of the applicant’s criminal history – unless the business performs a written assessment that links specific aspects of their criminal history with risks to the employees. In addition to all of this, if the employer complies with all these requirements, the employer must still provide the employee with “a fair chance process” which includes providing written notification of what the employer intends to do, i.e., retract the job offer, and also provide information or documentation that supports the proposed adverse action. The purpose of this is to allow the proposed applicant to have an opportunity to respond and provide information or documentation that should be considered in the employer’s assessment of whether to rescind the job offer.
There have been a few developments among municipalities, in cities such as San Francisco, in which some guidance is provided about the types of criminal proceedings that are often deemed unlawful for an employer to consider in making a job offer. These include arrests that did not result in any type of conviction, juvenile convictions, convictions older than seven years, common information other than felonies and misdemeanors such as traffic or other infractions. Generally, employers are prohibited from asking about an applicant’s conviction history, or an arrest considered unresolved, until after the employer has at least conducted a live interview of the applicant or made a conditional job offer.
These rules similarly apply to criminal background checks, which are accompanied by similar restrictions, to prevent applicants being excluded from the job hiring process, because of their criminal histories.
What Criminal Information is an Employer Not Allowed to Ask About?
As a general matter, California law prohibits employers from being able to ask about certain types of criminal information and criminal records. These include the following:
- In California statewide, it is unlawful for employers to ask for criminal information from an applicant, pursuant to “ban the box” laws. This means that it is unlawful for any California employer to include on an application for employment any question that seeks the disclosure of an applicant’s criminal history. This effectively prevents the inquiry from considering the conviction history of the applicant before the applicant receives a conditional employment.
- An arrest or detention that does not result in conviction.
- Certain marijuana-related infractions and misdemeanor convictions that are older than two years.
- Any type of criminal information while the person was a juvenile, including arrests, detention, processing, diversion, supervision, adjudication, or court disposition.
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated by law.
- Any non-felony conviction for possession of marijuana that is more than two years old.
- Employers cannot consider any information about misdemeanor convictions for which no sentence has been imposed.
- Employers cannot consider any infractions or misdemeanor convictions for which three years have passed since the date of the conviction.
- Employers cannot ask applicants to take a polygraph test.
- Employers cannot obtain a criminal investigation background report that includes information relating to arrests that did not result in convictions.
Can an Employer Ask About Arrests?
No. California law prohibits asking about an arrest that does not lead to conviction, or a pretrial diversion program.
Can Employers Ask About Misdemeanors in California?
There is no bright-line rule that prohibits employers from being able to ask a job applicant about misdemeanors, as long as the misdemeanor resulted in a conviction. In California, there is no distinction made between a misdemeanor or a felony with respect to whether it governs an employer’s ability to ask about the criminal information. What matters is whether the criminal proceeding resulted in a conviction. So for example, if a misdemeanor charge resulted in a conviction, the employer can ask about it, as long as it was not older than seven years from the date of disposition. On the other hand, if a misdemeanor charge did not result in conviction or a pretrial diversion program, and was only an arrest, the employer may not ask about it. The same rules as stated above apply to misdemeanors in the same way that they apply to felonies.
Can Employers Ask About Criminal Records in California?
It depends on the criminal record, what was asked about, and what point in time the inquiries were made. There is no bright-line test. Depending on whether the inquiries about criminal records were made as part of the job application process (i.e., before a job offer was made), and the inquiry involved criminal information other than convictions in the last 7 years, then it may not be permissible to ask about criminal record history.
Can an Employer Ask About Marijuana Offenses?
Unfortunately, California law prohibits employers from asking job applicants or employees about convictions for marijuana offenses that are more than two years old.
Can an Employer Independently Research an Applicant’s Criminal History Without Telling the Applicant?
California law provides that an employer may only obtain criminal arrest or conviction information from the employee, and may not obtain private information from another source and then use it to make an employment decision.
Requesting Criminal Background Information on the Initial Interview
It is generally not permitted to request criminal background information on the initial employment application or initial interview.
Are There Any Exceptions to These Laws?
There are certain exceptions for employers in specific industries that allow them to use information relating to arrest convictions that might otherwise be prohibited. For example, employers who work in law enforcement, with children, with the disabled, or in other sensitive positions, can still use certain types of criminal background checks.
For example, a healthcare facility with regular access to patients can ask applicants to disclose whether they have ever been convicted of a sex offender offense.
What Can California Employers Ask About?
Given all of the restrictions on what California employers cannot ask about, it can be difficult to identify what is fair game and what employers can lawfully ask about when it comes to criminal information.
Generally, a business can ask about the following:
- Request information about a felony that resulted in a criminal conviction, as long as no more than seven years have passed since the disposition of the conviction.
- Employers can also ask about an arrest for which the applicant is on bail or has been released on their own recognizance pending trial.
What Types of Inquiries to Avoid
If your business is considering asking applicants about criminal convictions, caution should still be exercised. Your business should ensure there is a legitimate business reason for asking for the criminal conviction information, and conviction is related to the job purpose, so that if you are confronted with questions about why the criminal information was considered as part of the applicant hiring process, you have a way of justifying the decision that was made. In addition, no bright-line rules or policies should be made that automatically disqualify an applicant based on certain criteria concerning criminal arrests or other criminal background information.
In addition, the law requires employers to give applicants an opportunity to show that the information in their criminal record is inaccurate. If it is, in fact, inaccurate, then the information cannot be used to make a hiring decision.
The Safest Route to Take
Risk managers generally recommend that employers only ask criminal history information if the categories of the crimes are related to the position for which the applicant is applying for. So for example, if the applicant will be someone in charge of handling money, then criminal information should be requested about crimes such as embezzlement or theft, or crimes involving breaches of trust. These types of inquiries are easier to justify if the employer is ever asked why they were soliciting criminal information from job applicants.
What Must an Employer Do if Denying Employment Due to a Prior Conviction
Assuming that your business understands its legal obligation and must still deny employment to an applicant based on criminal information, then a number of steps must be taken to comply with California’s laws. Specifically:
- the employer must provide written notice to the applicant
- identify the conviction that is the basis for the disqualification
- the notice should provide examples of information that the applicant could voluntarily provide mitigation or rehabilitation-type evidence
- allow the applicant a right to respond within 10 days
- employers must actually consider the information submitted by the applicant before making a final decision, and
- employers are prohibited from disqualifying the applicant if the applicant shows mitigation or rehabilitation