March 24, 2020
Under California law, subject to certain specified exceptions, it is unlawful for any California employer with 5 or more employees to inquire into a job applicant’s criminal conviction history (in an application for employment, interview, or otherwise) before making a conditional offer of employment to the applicant. [Gov. Code § 12952.] This law was proposed in response to the growing rate of unemployment in adults with criminal records. Now applicants with criminal records have a fair chance to apply for desired positions without being automatically denied in the preliminary application process (which is usually the hurdle for these applicants to overcome). Only after a conditional offer of employment is made to the applicant may the employer then ask about criminal history, or obtain the applicant’s authorization to conduct a criminal background check. (Exceptions to this law exist for positions where an employer is otherwise required by law to conduct criminal background checks, among other limited exceptions.)
This law does not, however, prohibit the employer from rescinding its offer of employment to the applicant once it discovers the applicant’s criminal conviction history. But the employer must first conduct an individualized assessment of whether the applicant’s criminal history has a “direct” and “adverse relationship” with the specific job duties of the position desired. In making this assessment, the employer must consider (1) the nature and gravity of the offense; (2) the time that has passed since the offense and completion of the sentence; and (3) the nature of the position sought. After completing this process, if the employer decides to disqualify the applicant based on the applicant’s criminal history, the employer must notify the applicant (in writing) of its preliminary decision to do so. The writing must contain the following: (1) notice of the disqualifying conviction(s); (2) a copy of the conviction report (if available); and (3) a statement informing the applicant of the right to respond to the employer’s notice, and the deadline by which to do so (at least five business days).
The applicant then has at least five business days to submit a written response challenging the employer’s decision and to submit any evidence disputing the accuracy of the conviction report, or other mitigating evidence. After considering all the evidence submitted by the applicant, the employer may still decide to deny the applicant employment based on the applicant’s conviction history, but the employer must send the applicant written notice of the final disqualification, information on any procedures the employer has to challenge the decision, and a notice informing the applicant of the right to file a complaint with the Department of Fair Employment and Housing.
A “conviction” under this law includes a plea, verdict, or finding of guilt regardless of whether a sentence is imposed by the court. [Lab. Code § 432.7.]
Further, at no point in the hiring stage may the employer ask about or consider an arrest or detention that did not result in conviction, information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or a conviction that has been judicially dismissed or ordered sealed pursuant to law. An employer can, however, ask an applicant about an arrest for which the applicant is out on bail or pending trial. (An exception to this law is provided for certain employers who are required under federal, state, or local laws to conduct criminal background checks.)
Applicants for employment can bring a lawsuit for violations of this prohibition on inquiring about an arrest or detention that did not result in conviction, information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or a conviction that has been judicially dismissed or ordered sealed pursuant to law, and can recover actual damages or $200 (whichever is greater) plus reasonable attorneys’ fees and costs. Intentional violations entitle the applicant to treble damages or $500 (whichever is greater) plus reasonable attorneys’ fees and costs. An intentional violation is also considered a misdemeanor. [Lab. Code § 432.7.]
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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.