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Can a Potential Employer Consider your Criminal History when Evaluating your Job Application?

Aug. 27, 2020

California is heavily regulated on how employers can obtain and consider background check information for use in hiring job applicants. One of the most recent regulations, known as California's ban-the-box law, became effective January 1, 2018. It requires employers with five or more employees to follow certain procedures when requesting and using criminal history information for pre-hire purposes. (It's important to note that the cities of Los Angeles and San Francisco have their own ban-the-box ordinances which are even stricter than the state regulation). The California ban-the-box law requires employers to do the following:

  • Wait until after a conditional offer of employment is made to ask applicants whether they have been convicted of a crime, order a criminal history background check, or make any other inquiry about an applicant's criminal history.

  • Conduct an individualized assessment of an applicant's conviction to determine whether it has a "direct and adverse relationship with the specific duties of the job that justify denying the applicant the position." (In the city of Los Angeles, the employer must also provide the applicant with their actual assessment).

  • Notify the applicant of any potential adverse action based on the conviction history. This notice must specifically identify the conviction, include a copy of any conviction history report, and state the deadline (at least 5 business days) for the applicant to provide additional information to rebut the conviction, such as evidence of inaccuracy, rehabilitation or other mitigating circumstances.

  • After waiting the requisite time period, notify the applicant of any final adverse action. The final adverse notice must discuss (1) any existing procedure the employee has to challenge the decision or request reconsideration; and (2) the right to file a complaint with the Department of Fair Employment and Housing.

In addition to the above, certain types of criminal records can generally never be used against a job applicant. Those records include the following:

  • Arrests that did not lead to a conviction.

  • Non-felony marijuana convictions older than two years.

  • Juvenile records.

  • Diversions and deferrals.

The attorneys at Simonian & Simonian, PLC have extensive experience in dealing with these types of employment issues. They are always available to answer your questions to see if you may have a case and can be contacted at (818) 405-0080.