Compliance/Best Practices Employment Law Legal Topics

Can Employers Still Reject Applicants with a Criminal History?

woman interviewing job applicantWhen and how employers may consider criminal convictions continues to be a hot topic, both in California and nationally. Against this backdrop, AB 1008 amended the Fair Employment and Housing Act to preclude most employers from inquiring about an applicant’s criminal record or conviction history until after a conditional employment offer is made, and imposed new notice and disclosure requirements if this information is sought.

Effective January 1, 2018, it’s an unlawful employment practice for an employer with five or more employees to do any of the following  (Govt C  §12952(a)):

  • Include on any application for employment questions that seek the disclosure of an applicant’s conviction history;
  • Inquire into or consider the conviction history of the applicant, until after the employer has made a conditional offer of employment to the applicant; or
  • Consider or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment: (1) arrests not followed by a conviction (except when the applicant is seeking employment at specified health facilities or when after an arrest the applicant is out on bail or released on the applicant’s own recognizance pending trial); (2) referrals to or participation in a pretrial or posttrial diversion program; or (3) convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

An employer can still deny an applicant a job solely or in part because of the applicant’s conviction history if the employer makes an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. Govt C §12952(c)(1).

If the employer makes a preliminary decision that the applicant’s conviction history disqualifies him or her from employment, the employer must notify the applicant of this preliminary decision in writing. Govt C  §12952(c)(2). The applicant then has at least five business days to respond to the notice before the employer may make a final decision. Govt C §12952(c)(3).

The employer must consider information submitted by the applicant before making a final decision. If that final decision is to deny the applicant the position, the employer must again notify the applicant in writing. See Govt C §12952(c)(5).

Keep in mind that this law doesn’t affect the rights and remedies afforded to the applicant by any other law, including any local ordinance such as San Francisco’s Fair Chance Ordinance and the Los Angeles Fair Chance Ordinances. Further, under 2017 amendments to Lab C §432.7, employers are greatly restricted in asking about juvenile-related offenses.

Exemptions. Certain categories of employers and positions aren’t subject to the provisions of Govt C §12952, including a state or local agency that’s otherwise legally required to conduct a conviction history background check and a position in which the employer is required by law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

In addition, employers that are health facilities may ask about arrests relating to sex offenses (under Pen C §290) if the position provides regular access to patients. Lab C 432.7(f)(1)(A). And when the position provides access to drugs or medications, the employer may ask for disclosure of any arrests under laws relating to registration of controlled substance offenders. Lab C §432.7(f)(1)(B).

For more details on the new law, including penalties for violations, turn to CEB’s Advising California Employers and Employees §1.29. And to see all of the key statutory developments for employment lawyers, check out the 2017 NewsFlash.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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