Bad Boys, Bad Boys, Whatcha Gonna Do When they Wanna Work for You?

You’ve made the decision to perform criminal background screening on some or all potential employees – here’s what you need to know.

California employers are permitted to use criminal background reports to screen potential employees, but only under certain conditions, and they must follow rigid procedures to be compliant with state and federal law.

First, in almost all cases, employers are required to make a conditional offer of employment to an applicant before the employer can inquire about the applicant’s criminal history or have a background check performed. This means the application cannot ask if the applicant has ever been convicted, nor can you ask about convictions in the interview stage. Once you’ve decided you want to proceed with making an offer, you must notify the applicant that the offer is conditional upon successful completion of a background investigation. It’s a good idea to make the offer in writing, so there is no confusion later about exactly what was communicated. You will need to receive written authorization from the applicant to obtain the report and send it to the company performing the background investigation for you. You don’t have to administer a criminal background screening on all potential employees, but you do have to do it consistently and indiscriminately for all applicants being considered for a particular position.

You get the background investigation report back, and it indicates criminal history… now what? You must know what information can be considered for employment purposes, and what information cannot. Employers are only allowed to consider convictions (not merely charges) that are no older than 7 years. Cases that are dismissed without conviction, subject to a diversion program, expunged or pardoned cannot be considered. For the conviction(s) that meet these requirements, employers are obligated to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job sought. To make this assessment, employers must consider the following:

(A) The nature and gravity of the offense or conduct;

(B) The time that has passed since the offense or conduct and completion of the sentence; and

(C) The nature of the job held or sought.

If, after completing the above analysis, you make the determination the applicant’s conviction history is a barrier to employment, you must take certain steps before rescinding the job offer. First, you must send the applicant a pre-adverse action letter that includes the following:

(A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer;

(B) A copy of the conviction history report; and

(C) An explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.

The applicant must be given at least 5 business days to respond to the pre-adverse action letter. If the applicant responds during that time and advises that they dispute the criminal conviction report, the applicant must be provided at least another 5 business days to provide evidence or a response. This information must be considered before a final decision can be made.

If the applicant does not provide a response or evidence that changes your mind, then you must send a final notice of adverse action notifying the applicant of the decision to rescind the job offer, and the employee’s right to file a complaint with the DFEH.

If you would like any guidance in determining what information can be used to rescind an offer of employment or in preparing the required documentation, please contact the Holden Law Group.