Efficient And Effective Business Litigation

How can employers treat applicants with convictions?

On Behalf of | Feb 9, 2022 | Employment Law |

California employers, with at least five employees, cannot ask applicants about their conviction history before making a job offer under the Fair Chance Act. This restriction was enacted to reduce employment barriers with conviction records. Employment is essential for providing support for these workers and their families, improve their connections to their communities and maintain their mental health.

Ban the box

The Department of Fair Employment and Housing this employment law, commonly referred to as a ban the box law. Employers may not:

  • Place a question on an application about conviction history before a conditional job offer was made.
  • Ask about or consider an applicant’s criminal history before a conditional job offer was made.
  • Consider information about arrests that did not result in a conviction, completion of a pretrial or posttrial diversion program where the underlying conviction or charges were dismissed, sealed, or eradicated or convictions that were sealed, dismissed, expunged, or legally eradicated.

Job offers

After offering the job, employers may perform a criminal history check. But they cannot withdraw the job offer without performing an individualized assessment of the conviction history where they consider the nature and seriousness of that history, the time elapsed after conviction, and the type of job being offered.

Employers, after the offer, may also ask applicants if they have a conviction history. They cannot, however, ask or consider information about an arrest that did not lead to a conviction, referral to or participation in a pretrial or posttrial diversion program or convictions that were sealed, dismissed, expunged, or legally eradicated.

If the offer is withdrawn because of the conviction history, employers must provide written reasons and a copy of that history to the applicant. They have to inform applicants that they have five business days to respond with evidence contesting the accuracy of the conviction history report, evidence about rehabilitation, education, training, and post-conviction life.

Employers must consider this response. They also have to provide final written notification of any decision to disqualify the applicant and the right to file a complaint with the DFHE.

Coverage

Public and private employers including hiring halls, labor contractors, temporary employment agencies and client employers are covered. The law exempts certain jobs at health care facilities, farm labor contractors and criminal justice agency positions.

Consideration of a conviction for an exempt job may be challenged as being discriminatory unless it is job-related and coincides with business necessity. Use of a conviction may be unlawful even if it is job-related or consistent with business necessity if there is a less discriminatory way to meet business necessity.

Attorneys can help employers comply with this law. They can also protect their rights in investigations and legal proceedings.