What are the California rules on asking job applicants or employees about arrests and convictions?

 

June 23, 2017
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California law generally prohibits asking a job applicant or an employee about an arrest that did not lead to a conviction or about a pretrial or post-trial diversion program. This law is found in Labor Code Section 432.7. A similar provision in Labor Code Section 432.8 prohibits asking a job applicant (or an employee) about convictions for minor marijuana offenses that are more than two years old. An employer cannot obtain prohibited arrest or conviction information from a source other than an employee and then use it for making any employment decisions. If an employer inadvertently learns such prohibited information and it raises any serious concerns about hiring or continuing to employ the individual, legal counsel should be consulted before taking any action.

Additionally, Labor Code Section 432.9 prohibits an employer from requesting criminal background information on the initial employment application for local and state government employees. However, criminal history information can still be requested on the initial employment application for law enforcement positions, positions working with children, the elderly or disabled, and other sensitive positions, and criminal background checks can be conducted at the discretion of the employer. This law affects only when, not whether, public employers may consider criminal conviction history for employment purposes.

The law is based on the following concerns:

  • Arrests do not indicate guilt.
  • Arrests alone can lead to discriminatory impacts because some racial or ethnic groups may be subject to a higher incidence of arrest rates without convictions.

There are exceptions for employers in certain industries to seek and use information relating to certain arrests or convictions that might otherwise be prohibited.

California employers can inquire about convictions (other than specified minor marijuana convictions), but they should still exercise caution in relying on information about convictions when making any employment decisions. Employers must ensure there is a legitimate business purpose and the criminal history is job-related when making adverse decisions. Employers must also use caution in establishing any policy that results in an absolute or automatic bar to employment for applicants with a record of a criminal conviction.

Effective July 1, 2017, regulations approved by the California Fair Employment and Housing Counsel (FEHC) limit the types of criminal-history policies that companies can adopt. They state that employers can't have a policy that has an adverse impact on a person in a protected class under the California Fair Employment and Housing Act (FEHA)—unless the policy is job-related and consistent with business necessity.

The regulations note that current state law already prohibits considering certain criminal-history information, such as:

  • An arrest or detention that didn't lead to a conviction.
  • Participation in a pre-trial or post-trial diversion program.
  • A conviction that's been dismissed, sealed, expunged or statutorily eradicated.
  • An arrest, detention or other proceeding that occurred while subject to juvenile-court law.
  • A non-felony conviction for possessing marijuana that's two or more years old.

The applicant or employee has the burden of proving an adverse impact based on a protected category—such as gender, race or national origin. According to the rules, "State- or national-level statistics showing substantial disparities in the conviction records of one or more categories enumerated in the act are presumptively sufficient to establish an adverse impact."

If the person shows an adverse impact, the burden shifts to the company to show the policy is job-related and consistent with business necessity. Employers can use three factors to show this:

  • The nature of the offense.
  • The time that elapsed since the offense or completion of the sentence.
  • The nature of the job.

To show that a policy is tailored to the job, the company must either:

  • Demonstrate that any "bright-line" rule disqualifying candidates with certain criminal convictions is because of an unacceptable level of risk in that job and that it has a direct negative bearing on the person's ability to perform the job.
  • Review the individual job applicant's report and give the applicant an opportunity to explain why a conviction shouldn't bar him or her from consideration for the job.

Before an employer takes an adverse action—like declining to hire a job applicant—the employer must notify the applicant of the disqualifying conviction.

The company also must give the applicant an opportunity to show the information is inaccurate. If it is inaccurate, then that information can't be considered in the hiring process.


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