California law prohibits employers from asking job applicants about any arrest or detention that did not result in a conviction. This means that employers cannot ask about arrests and related court proceedings during job interviews, on job applications, or in any other type of communication between employers and applicants.
However, there are some exceptions to this law—for example, employers may ask about criminal history if they are conducting a background check for certain positions. These positions include positions that require a certain level of trust, such as positions in law enforcement or positions that involve access to sensitive data. In these cases, employers may ask about criminal history, but they must provide a written notice to the applicant explaining the process and their rights.
This blog will provide an overview of California laws and how they protect job applicants.
What Does a Background Check Provide?
A California background check is a search of a person’s criminal history, including arrest records, convictions, and any pending charges in the state of California. It can provide employers, and other interested parties with valuable information about an individual’s criminal record and background.
Criminal History
A California background check will show an individual’s criminal history in the state of California. This includes any convictions, arrests, and pending charges. It will also show if the individual is currently on probation or parole. It is important to note that a criminal history may only be available to employers if the individual has been permitted to do so.
Credit History
A California background check may also provide information about an individual’s credit history. This can include bankruptcies, late payments, collections, and other financial information. This is usually only available to employers or landlords, as it is considered private information.
Civil Records
A California background check may also include information about any civil records. This includes lawsuits, judgments, liens, and child support payments. This information is available to employers, landlords, and other interested parties.
California Laws on Employer Use of Arrest and Conviction Records
The California Fair Employment and Housing Act (FEHA) prohibits employers from asking about an applicant’s criminal record until a conditional job offer has been made. Employers are also prohibited from using any information related to an individual’s criminal history that has been expunged or sealed. in making employment decisions.
In addition to the FEHA, California employers must adhere to the California Labor Code which establishes certain restrictions on the use of criminal background checks. Specifically, the Labor Code prohibits employers from considering any conviction that is more than seven years old. This means that an employer cannot refuse to hire an applicant based on a conviction that occurred more than seven years ago. There are some exceptions to this rule, however. Employers are allowed to consider convictions that are more than seven years old when the job requires the individual to possess or use a firearm or when the conviction is related to the job being applied for.
In addition, employers are allowed to consider any convictions that have occurred within the last seven years if they are related to the job being applied for. Employers must also provide applicants with a copy of their criminal background check after the check has been completed. Additionally, employers must provide applicants with an opportunity to explain or dispute any information contained in the background check before making a hiring decision.
Ban the Box and Fair Hiring Laws in California
The Fair Chance Act, commonly referred to as Ban the Box is a California law that prohibits employers from asking about or considering an applicant’s criminal history until after a conditional offer of employment has been made. The purpose of this law is to reduce recidivism and give individuals with criminal backgrounds a fair chance at employment. However, these laws are only applicable to public employers
The main components of the Ban the Box law are as follows:
- Employers may not ask about an applicant’s criminal history on the initial job application or during the initial interview.
- Employers must provide applicants with written notice of their rights under the Ban the Box law.
- Employers must conduct an individualized assessment of the applicant’s criminal history and determine whether the criminal history is related to the position in question.
- If the employer finds that the criminal history is related to the position in question, the employer must inform the applicant of its findings in writing, and provide the applicant with an opportunity to explain or dispute the findings.
- Employers may not take any adverse action against the applicant based solely on the criminal history unless the criminal history is substantially related to the position in question.
Apart from the Ban the Box law, California has also passed several other laws aimed at promoting fair hiring practices. The Fair Chance Act requires employers to conduct an individualized assessment of an applicant’s criminal history, rather than making blanket decisions based on criminal records. California also has laws protecting the rights of ex-offenders, including the California Fair Employment Opportunity Act and the California Reentry Program.
How Can Employers Use Background Checks Legally?
The California Fair Employment and Housing Act (FEHA) and the Investigative Consumer Reporting Agencies Act (ICRAA) are two pieces of legislation that regulate the use of background checks to ensure the hiring process is fair for all applicants. Employers must understand how these laws apply to them and how to use background checks legally in California.
The California Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against applicants based on their race, color, religion, ancestry, age, sex, national origin, marital status, medical condition, physical or mental disability, sexual orientation, gender identity, or military and veteran status. This means employers cannot use background checks to deny a candidate a job because of any of these protected characteristics. Employers must also provide written notice to applicants before conducting a background check and give them a reasonable opportunity to dispute any information they believe to be inaccurate or incomplete.
The Investigative Consumer Reporting Agencies Act (ICRAA) is the main statute in California that regulates the use of consumer reports, which includes background checks. The ICRAA requires employers to provide applicants with a written disclosure before obtaining a consumer report, which outlines the employer’s intent to obtain such a report and the applicant’s right to request a copy of the report. Employers must also obtain written authorization from the applicant before they can obtain a consumer report.
In addition to these laws, employers must also follow the Fair Credit Reporting Act (FCRA). The FCRA protects the privacy of consumer reports and requires employers to use them responsibly. Employers must provide a copy of the consumer report to the applicant and allow them to dispute any inaccurate information. The employer is also required to provide the applicant with a written summary of their rights under the FCRA.
When Can an Employer Reject an Applicant Based on a Criminal History?
Although employers must comply with the applicable laws and regulations when making hiring decisions, there are certain occasions when rejecting an applicant based on criminal history may be appropriate. While these instances are limited and must always be considered on a case-by-case basis, employers need to be aware of when and how they can legally reject an applicant based on criminal history.
According to the Equal Employment Opportunity Commission (EEOC), employers may reject an applicant based on criminal history only if the job in question requires that the employee possess certain qualities and traits that are related to the criminal record. For example, if the job requires working with vulnerable populations such as children or the elderly, the employer may consider rejecting an applicant who has a history of violent or sexual offenses.
Similarly, if the job involves handling money, the employer may consider rejecting an applicant who has a history of fraud or embezzlement. In addition to the job-related qualities and traits, employers may also reject an applicant based on criminal history if the criminal record is recent and/or relevant to the job.
Finally, employers may also reject an applicant based on criminal history if the applicant has a pattern of criminal misconduct or if the criminal record is considered to be a risk to the safety of other employees and/or customers.
California Expungement Law
California expungement law is a set of laws that allow individuals to clear their criminal records in certain circumstances. This can be helpful for those who have been convicted of a crime and wish to move past their record and start fresh.
Expungement is the legal process of clearing criminal records from public view. Once a record is expunged, it is sealed from public view. Under California law, certain minor and nonviolent offenses are eligible for expungement. This includes misdemeanors and some felonies. However, certain serious felonies, such as murder or rape, are not eligible for expungement.
The process of expungement begins with a petition to the court. The petition must include a description of the crime, the sentence imposed, and the date of conviction. The court will review the petition and determine whether the individual is eligible for expungement. If the court approves the petition, it will issue an order to seal the record.
After the record is sealed, it is not available to the public. It is also not available to employers, landlords, or any other third party conducting a background check. The record can be accessed by law enforcement and prosecutors in certain instances, such as if the individual is charged with another crime.
Automatic Conviction Relief – AB 898
In 2018, California passed Assembly Bill 898 (AB 898) which limits the use of arrest and conviction records by employers. The law was designed to reduce the negative impact on employment opportunities for people with criminal records.
Under AB 898, employers are prohibited from asking job applicants about arrests that did not result in a conviction. This means employers cannot ask applicants about any arrests that did not result in a conviction, regardless of how long ago the arrest occurred. Additionally, employers are prohibited from asking job applicants about certain types of convictions that are more than seven years old. This includes convictions for misdemeanors, infractions, and certain felonies.
However, AB 898 does not apply to all types of employers. For example, employers that are required by state or federal law to conduct background checks are not required to adhere to the restrictions of AB 898. These employers may still ask applicants about arrests and convictions that are more than seven years old.
By limiting employers’ use of arrest and conviction records, the law could open up more employment opportunities for people with criminal records. This could help reduce the high rate of recidivism in California, as ex-offenders would have more chances to rebuild their lives through gainful employment. The law could also help reduce the cycle of poverty for many families in the state. By helping ex-offenders find employment, AB 898 could help families escape the cycle of poverty and build a better future for themselves.
The Department of Fair Employment and Housing (DFEH) is responsible for enforcing AB 898. The DFEH investigates complaints related to employers’ use of arrest and conviction records and can impose penalties on employers that violate the law. The DFEH also provides resources to help employers understand their obligations under the law. These resources include guidance documents, webinars, and training courses.
Find a Criminal Defense Attorney Near Me
California law provides strong protections for job seekers by limiting the ability of employers to use arrest and conviction records when making hiring decisions. Job seekers need to understand their rights under the law, as well as how employers are allowed to consider criminal records when making hiring decisions.
At Foos Gavin Law Firm, we provide legal advice and representation to people facing criminal charges throughout Sacramento. We can also help you get an expungement to erase your criminal history to increase your chances if you are seeking a job. Contact us at 916-779-3500.
