Employers…Avoid the Common Mistakes in Hiring Based on Criminal Background Checks.

By Rodrigo J. Torres, Esq.

As part of an effort to hire the most desirable applicants, many employers run criminal background checks on applicants. While most employers are familiar with the required notices and disclosures before running background checks, many may not be familiar with California’s requirements that apply whenever an employer makes an employment decision based on criminal background check results.

First, it bears repeating that an employer may not include on any application for employment any question that seeks disclosure of an applicant’s criminal history. Also, an employer may not inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant. Thus, this article assumes that an employer has already made a conditional offer of employment and thereafter conducted a criminal background check.

 If an employer is going to make a hiring decision based, in part, on the applicant’s criminal history, it must comply with California’s Fair Chance laws (the City of Los Angeles has its own Fair Chance Ordinance, which applies to employers within the city. You may find more information here: https://bca.lacity.org/fair-chance).  Generally speaking, this means:

1. If an employer intends to withdraw a job offer based on the applicant’s criminal record, the employer must first make an individualized assessment, which may be put in writing (note: L.A.’s Fair Chance Ordinance requires a written individualized assessment), that includes consideration of (a) the gravity of the conduct, (b) the time that has elapsed since the conduct occurred, (c) and the nature of the job being offered.  In short, in performing this individualized assessment, the employer must effectively link the specific aspects of the applicant’s Criminal History with risks inherent in the duties of the position sought by the Applicant.  For example, an applicant with a recent DUI may pose an unreasonable risk if hired as a driver.  An applicant with an identity theft conviction may pose an unreasonable risk if hired as a personal loan officer.  However, an applicant with a DUI will not pose an unreasonable risk if hired as a cashier—the job requires no driving, so the DUI cannot be linked to the aspects of the job.

1. If the employer’s decision is to withdraw the offer, the applicant must be notified of the Company’s preliminary decision to rescind the offer of employment in writing. Pursuant to Government Code Section 12952 (c)(2), this notice must contain 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 applicant’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 must 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. 

1. Under L.A.’s ordinance, the employer must also present the applicant with a copy of the individualized assessment.  The employer cannot make its decision to withdraw the job offer or fill the position the applicant seeks for at least five (5) business days after the applicant has been informed of the employer’s preliminary decision. If the applicant provides the employer with any information or documentation regarding the accuracy of his/her criminal background check results, evidence of rehabilitation, or other mitigating factors, then the employer must consider the new information and perform a written individualized reassessment.

1. The applicant must have at least five (5) business days to respond to the notice provided to the applicant before the employer may make a final decision. If, within the five (5) business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five (5) additional business days to respond to the notice.  The employer shall consider information submitted by the applicant before making a final decision.

• If an employer makes a final decision to deny an applicant solely or in part because of the applicant’s criminal history, the employer shall notify the applicant in writing of all the following: (A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification. However, in L.A. the employer must provide the applicant with its written individualized assessment; (B) any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and (C) the right to file a complaint with the Department of Fair Employment and Housing (DFEH).

Please feel free to reach out to us if you have any questions.  Because each situation is different, this is not intended as legal advice.