Three California residents have a criminal record and if you’re among them, you might want to know how a criminal record impacts job searches. Research shows that most employers conduct background checks during hiring, particularly for sensitive roles.
Job applications nowadays contain questions related to the criminal history of the applicant. The sad part is that an employment background check in California can be used to victimize qualified candidates. Fortunately, the rights of job applicants with a criminal history are protected under California law.
California’s Ban-the-Box Law
California’s Ban-the-Box Law also called the Fair Chance Act and was effected in 2018. The law provides equal employment opportunities for California residents with a criminal background. The Fair Chance Act prohibits companies/ employers from asking job applicants about their criminal history during the initial stages of an interview–such questions should be asked at a later stage of the interview.
This Act aims to promote the assessment of a job seeker’s fitness for a job instead of disqualifying them based on their criminal past. In other words, California’s Ban-the-Box Law eliminated criminal history from employment screening.
Employers Covered by the Fair Chance Act
The Fair Chance Act applies to companies or employers with a minimum of five employees and it covers both public and private employers although certain jobs are exempt from this law, including:
- Jobs that require a mandatory government criminal background check;
- Criminal justice agency jobs, as specified in section 13101 of the Penal Code;
- Jobs that are described in section 1685 of the Labor Code;
- Positions that legally require employers to perform criminal back checks before employment or for restricting employment.
Information Protected Under the Fair Chance Act
California’s Fair Chance Act prohibits employers from:
- Including Questions about criminal history in a job application without making a conditional offer to applicants.
- Asking about or evaluating job seekers’ criminal past before conditional job offers are made to applicants;
- Considering arrest history that didn’t involve a conviction, post-trial diversion participation, or convictions that were sealed, dismissed, expunged, or eradicated statutorily.
Before and After Conditional Offers of Employment
The Fair Chance Act prohibits questions such as “Do you have a felony conviction history? Under “before conditional employment offers” the criminal history of a job applicant can’t be questioned, looked into, or considered until a conditional employment offer has been made to the job seeker.
Under “after conditional employment offers”, a prospective employer can proceed to question, look into, or consider an applicant’s criminal history after making a conditional offer of employment. Records that didn’t involve conviction are considered “Criminal records that should not be considered by prospective employers”–meaning they’re off-limits.
Employers should evaluate the significance of a job applicant’s criminal history, including the likely consequences, before dismissing a job seeker. The following points can help employers make informed decisions before hiring a job applicant with a criminal record:
- The type and seriousness of the criminal offense;
- The duration a job applicant has been clean since serving a criminal charge or conviction;
- The sensitivity of the vacant position (role being applied for).
For instance, suppose a job seeker was convicted of OTC drug abuse five years ago. They completed rehab and have been sober since. The conviction could be a ground to deny employment for a pharmacist position but not for a front-office position.
Notice Provision and Response
Employers should issue written notices to job applicants if they’re no longer interested in hiring the job seeker after completing the inquiry process. The features of the notices should:
- Highlight the conviction that influenced the decision;
- Issue the applicant with a copy of the criminal history report; and
- Request the applicant to respond with evidence within a certain timeframe.
Applicants must be allowed five business days to challenge the employer’s decision or provide more evidence to reduce the impact of a criminal offense. For instance, an applicant produces evidence of completing a drug rehabilitation program or evidence of other ways of amending their crimes. A job applicant should be given an extra five days if they notify the employer that they’re still gathering evidence.
Criminal Records that Should Never be considered by Employers
Certain criminal records are considered off-limits for employers In California. In other words, prospective employers cannot question or consider the following during the hiring process:
Prior arrests that were not convicted should not be a topic of discussion. However, arrests that led to convictions the ones awaiting trial can be discussed.
Pretrial and post-trial diversion programs shouldn’t be discussed.
Sealed, expunged, and statutorily eradicated convictions shouldn’t be discussed.
Employers shouldn’t discuss juvenile offenses– arrests, detentions, or adjudications.
The Fair Chance Act provides an equal employment opportunity to job applicants. Your employment attorney can help you understand more about the Fair Chance Act or California’s Ban-the-Box Law.