Under the new “Ban the Box” law, California employers are no longer allowed to ask applicants about their prior criminal history before making a conditional offer of employment, in most circumstances.
If you are a company with 5 or more employees, this new law requires that you update the employment application you use to ensure it does not inquire about criminal convictions, as well as update the procedures you follow when considering potential criminal conviction history in employment decisions. This law does not apply to employers who must comply with state, local or federal requirements for criminal background checks for their employees.
Once a conditional offer of employment has been made, an employer may, following the legal requirements and when appropriate, run a criminal background check on an applicant and/or inquire about any criminal conviction history.
If an employer is considering denying employment to an applicant to whom a conditional offer has been given, the company must engage in a “fair chance” process, described in this new law. The employer must undertake an “individual assessment” of the facts of the situation, considering the nature of the criminal offense, whether the offense has bearing on the specific job the applicant has applied for, and how long ago the offense occurred.
If the decision is made to rescind the offer of employment, employers must follow a series of steps which include an initial written notice to the applicant which contains certain information, allowing for a response from the applicant, and then written notice to the applicant of the final decision.
Employers must also comply with other rules regarding the type of criminal history that may be taken into account with regard to employment decisions, and employers must always be in compliance with provisions within the FCRA, Fair Credit Reporting Act.
Laws pertaining to these issues can be complex and confusing. Employers should seek counsel regarding the extent of their obligations under the law. Contact Freeland Law APC for a free 30-minute consultation with Michael Freeland, experienced employment lawyer serving San Diego, California. Michael Freeland has been practicing law for more than 27 years and specializes in employment law matters.
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