Question:

I’m a new employer and am trying to get my onboarding processes dialed in. Is it okay for me to run criminal background checks on prospective employees?

Answer:

Yes, you can run a background check, with some caveats. In 2018, California enacted state-wide fair chance legislation (sometimes known as “Ban the Box”) prohibiting employers with five or more employees in California from inquiring into the criminal history of a job applicant before making a conditional offer of employment.This means that employers cannot ask about criminal history during an initial interview or subsequent interviews if an offer of employment has not been extended.

And even after making an offer of employment, an employer cannot deny the applicant the job because of a conviction without first making an individualized assessment. There are a lot of small moving parts here, so making sure you understand them is critical to ensure you’re acting legally.

Why Is It Called a “Ban the Box” Law?

“Ban the Box” refers to the criminal history question that was once very common on standard job application forms. This question was some iteration of “have you ever been convicted of a crime?” and if the answer was yes, applicants would have to check that box off on the application.

These laws are aimed at helping individuals who have been convicted of a crime “re-enter” society. By banning questions like these from interview forms, formerly incarcerated individuals are given the opportunity to be considered based on the individual’s qualifications and not simply removed from consideration based on criminal record. Note: California’s “Ban the Box” law applies to private employers with 5 or more employees, which is a pretty low threshold!

Exceptions to Ban the Box

Of course, there are other laws out there requiring backgrounds checks and related inquiries depending on the field of work. And that’s why there are exceptions to California’s Fair Chance Initiative! This particular law does not apply to:

• A position for which a state or local agency is required by law to conduct a conviction history background check;
• A position with a criminal justice agency;
• A position as a Farm Labor Contractor; or
• A position where an employer or agent is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

That last bullet is pretty darn broad—it may encompass careers in education, healthcare, IT and computer sciences, finance, hospitality, caregiving, and more. It’s always wise to speak with an attorney before assuming you do (or do not) fall under it, or any of the other exceptions.

Conditional Offer of Employment

We mentioned that employers cannot ask about a criminal conviction or run a background check until after making a conditional offer of employment. A conditional offer of employment is an offer of employment that is dependent on the employee meeting certain conditions, one of which could include a background check.

This timing is important because it allows the employer to make decisions without bias. The employee is able to present their skills, abilities, and talents without having their past criminal history overshadow present potential to be a great employee.

If an employer chooses to conduct a criminal background check after the conditional of employment, they cannot disqualify the applicant based on criminal history (either solely or in part) without first conducting an “individualized assessment.” We’ll get into this now.

The Individualized Assessment

An individualized assessment requires the employer to consider a number of factors to decide whether or not to hire an applicant. This means that an employer can’t just decide they don’t want to hire the applicant because of the existence of a conviction. These factors include:

• Whether the applicant’s conviction history has a direct and adverse relationship with the specific job duties;
• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and completion of the sentence; and
• The nature of the job held or sought.

For example, let’s imagine an individual applies for a job as a cashier at retail store. A conditional offer of employment is made and after running a background check, the employer discovers that the applicant was convicted of a felony theft crime 2 years ago and just got out of prison. Not much time has passed since the conviction and the conviction was felony level, meaning they probably stole a lot or they did it with a weapon. Not exactly the safest idea to have a person that’s been convicted of stealing handling the money!

However, let’s change the scenario. Let’s say the crime was a misdemeanor—the individual shoplifted some gum, lip balm, and a lighter from a convenience store 10 years ago when they were 16 years old. They paid a fine and did a couple hundred hours of community service. They’ve never been convicted of a crime since then. A lot more time has passed and the nature and the gravity of the offense here really isn’t that bad, in the grand scheme of things. Sounds like a dumb kid with nothing to do on a Saturday night! In this scenario, the risk of “recidivism” (a fancy way of saying re-offending a crime) seems much lower than the first scenario, so this applicant may still be a good fit for the job.

Notification in Writing to Disqualified Applicant

It’s ultimately up to the employer how they’d like to proceed, but if the employer denies the applicant based on conviction history, the employer must notify the applicant in writing.

The written notification may explain the employer’s reasons or basis for making the preliminary decision to disqualify the applicant, however, this is not required. What is required would be the following:

• Notice of the disqualifying conviction(s) that is/are the basis for the decision to rescind the offer of employment;
• A copy of the conviction history report, if any; and
• An explanation of the applicant’s right to respond to the notice of the employer’s decision before that decision becomes final and the deadline by which to respond.
• The explanation of rights must also inform the applicant that they may submit evidence that challenges the information in the conviction history report, evidence of rehabilitation, or evidence of mitigating circumstances.

Timing is very important here. An employer must wait 5 business days before actually moving forward with the employment decision. The applicant is entitled to a “fair chance process” during these 5 days and can provide any mitigating information or information they feel shows rehabilitation—essentially reasons why the employer should change its mind. A reassessment must then be written to include all new information provided. If the decision is still made to rescind the offer of employment, the applicant must receive a written copy of the decision and the reassessment.

And employers should note that the they must retain all documentation relating to this process for a period of at least 3 years! This includes documents related to employment applications, written assessments and reassessments.

Wrapping It All Up….

There are other background check laws out there (like the Fair Credit Reporting Act!), but if you’re in California, this is one you definitely need to know about. Before implementing a background check process, it’s crucial that you speak to an attorney to understand your limitations. You’ll be happy that you did!