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Background checks are a routine part of the hiring process for many employers, however, they are also governed by strict laws in California designed to protect the rights of job applicants. Employers who conduct background checks must comply with these laws to avoid legal liability and violating your rights.
The California Fair Chance Act (also known as the “Ban the Box” law)
The California Fair Chance Act became effective on January 1, 2018, and protects job applicants from discrimination based on their criminal history. The law limits when and what employers can ask about criminal history and gives applicants the right to provide additional information about themselves before the employer can reject them because of that history. The law applies to all private and public employers, with some exceptions.
What Does “Ban the Box” Refer To?
“Ban the Box” refers to the box or question on employment applications that asks applicants whether they had a criminal history, such as whether you have been convicted of a felony or other crimes. Due to the California Fair Chance Act, most employers can no longer ask these types of questions on job applications.
Which Employers are Covered by the California Fair Chance Act?
Employers, whether public or private, that have 5 or more employees.
However, the protections of this bill do not cover positions:
When the law requires a private employer, or a state or local agency, to conduct a criminal background check or restrict employment based on criminal history
With a criminal justice agency (like police departments, district attorney offices, Sheriff’s departments, etc.)
Farm labor contractors (companies that hire agricultural workers)
What Covered Employers Can’t Do:
The California Fair Chance Act regulates what criminal history information employers can consider, when they can consider it, and what they must do if they intend to deny someone a job based on that criminal history.
Specifically, under the California Fair Chance Act and the closely related California Labor Code § 432.7, covered employers cannot:
Include questions about your conviction history on a job application;
Ask about your criminal history, including at an interview, before making a conditional job offer (“conditional job offer” means an offer of employment that is pending, subject to a background check);
Ask about or consider information about:
(1) Arrests that didn’t lead to convictions (unless the applicant is out on bail or on his or her own recognizance pending trial),
(2) Participation in pretrial or post-trial diversion programs, or
(3) Convictions that have been sealed, dismissed, expunged or statutorily eradicated;
Ask about or consider information about arrests, detentions, processing, diversions, supervision, adjudications, or court dispositions stemming from juvenile courts.
Employers May Not Consider Certain Information During Employment Related Decisions
In general, employers may not consider the following information when making employment-related decisions, including whether to revoke a conditional job offer:
Arrests or detentions that did not result in conviction (except if the employee or applicant is out on bail or on his or her own recognizance pending trial);
Referral to or participation in pretrial or post-trial diversion programs;
Convictions that have been sealed;
Convictions that have been dismissed (sometimes called “expunged”);
Convictions that have been statutorily eradicated;
Convictions for which a full pardon has been received;
Convictions for which a person has been issued a certificate of rehabilitation;
Information about arrests, detentions, processing, diversions, supervision, adjudications, or court dispositions stemming from juvenile courts.
Los Angeles and San Francisco have their own “Fair Chance” ordinances that provide additional rights for job seekers.
Extra “Ban the Box” Protections in San Francisco
San Francisco’s “Ban the Box” ordinance provides added protections, specifically, covered employers in San Francisco:
Cannot consider an offense other than a felony or misdemeanor, such as an infraction.
Cannot consider a conviction that is more than 7 years old (unless the position being considered supervises minors or dependent adults)
Cannot consider a conviction for decriminalized conduct, including the non-commercial use and cultivation of cannabis.
Extra “Ban the Box” Protections in Los Angeles
Los Angeles also has its own ordinance. That law requires:
Covered employers to provide a “fair chance process” after conducting an individualized assessment about the conviction and deciding not to hire someone.
Where that “fair chance process” requires the employer to:
Provide the applicant with written notice of the action
Hold the job open for at least 5 business days after the applicant has been informed and
Allow the applicant an opportunity to submit documentation while the job is held open.
What Covered Employers Are Allowed To Do:
After a conditional job offer is made to you, the employer may:
Conduct a criminal history or background check (but in most cases, are not required to do so). However, the employer is required to make an individualized assessment of your conviction history, evaluating factors such as:
the nature and seriousness of your criminal history;
the amount of time that has passed; and
the nature of the job sought and whether the criminal history is directly related to the position.
If the employer decides to take back its job offer, it must:
Do so in writing, notify you of which conviction was disqualifying, provide a copy of any report or background check they relied on, and give you at least five business days to respond to the decision (see below for how you can respond).
The employer must then consider your response, taking into account any evidence of mistakes or rehabilitation you provided.
If the employer still wants to revoke your job offer, it must provide you with a final written notice, with information about how to challenge the decision with the company and/or file with the Department of Fair Employment and Housing (see below).
Separately, the California Investigative Consumer Reporting Agencies Act requires employers that use background check services to notify you about:
The purpose of the background report;
The name, address and telephone number of the company doing the background check;
A summary of your rights to see any report about you; and
Your ability to request a copy of the report.
When running searches in-house, employers must generally allow applicants to receive a copy of the public records used to create the report and obtain your written permission to run a background check when using a third-party screening company.
What Can You Do?
If your employer notifies you of a disqualifying conviction, then you can:
Request a copy of the background report
Respond to the employer’s notice by pointing out and submitting proof of errors in the records it relied on.
Respond to the employer’s notice by submitting evidence of rehabilitation. Evidence of rehabilitation can include:
Proof of enrollment or completion of high school
Letters of recommendation from previous teachers, professors, counselors, instructors, or employers
Proof of completion of rehabilitation programs after the conviction
Letters from:
Probation or parole officers attesting that you satisfied all terms of probation or parole
Recovery programs and/or counselors attesting to your current state of rehabilitation (e.g. substance abuse treatment or anger management courses)
A psychologist or other mental health or medical professional
Proof of community service, education or other self-improvement efforts
A personal statement from you describing your rehabilitative efforts, or any changes you have made to improve your life
Document what is happening and contact a lawyer. It is important that you:
Keep copies of your job application, background check, any correspondence (e-mails, texts, letters, etc.) between you and the employer or its representative
Keep any other relevant materials in a safe place
Make notes for yourself of any verbal communications, including in-person and phone conversations, and include the details of who, what, where, and when.
Other Laws Protecting You
Fair Credit Reporting Act (FCRA)
The federal Fair Credit Reporting Act (FCRA) governs how employers can use consumer reports, including background checks, in hiring decisions. Under the FCRA, if an employer uses a third-party background check company (also known as a consumer reporting agency) to conduct a criminal background check, they must:
Notify the applicant in writing and obtain their consent before conducting the check.
Provide the applicant with a copy of the background check report and a summary of their rights under the FCRA if the employer plans to take adverse action (such as denying employment) based on the report.
Failure to comply with the FCRA can result in legal consequences for employers, including fines and lawsuits.
California’s Labor Code Section 432.7
Employers are prohibited from asking about or using information related to an individual’s arrests that did not lead to convictions, participation in pretrial or post trial diversion programs, or any arrests where the charges were dismissed. It also prevents employers from using such information as a basis for hiring, promoting, or terminating an employee.
You Could Be a Victim of Discrimination
If you believe you have been discriminated against in hiring based on your age (40+), disability, race, ethnicity, national origin, religion, pregnancy, sexual orientation, gender, gender identity, or military and veteran status, you may have rights and remedies under other state or federal employment laws.
For example, if several applicants that apply have criminal records and the employer rejects all the Latinos and only hires applicants from other races with a comparable criminal record, race discrimination may be present.
Evidence of biased statements, inconsistent hiring processes, or statistical evidence that tends to show that criminal background history weighs more heavily against protected groups than non-protected groups can also establish a discrimination claim.
What if my criminal history involves substance abuse?
Past drug addiction may qualify as a disability under state and federal employment discrimination laws. If you are receiving treatment for drug and/or alcohol addiction and no longer using illicit substances, you may have additional rights.
What if the employer says they will not hire anyone with a felony?
Blanket bans against anyone with a felony conviction are likely unlawful, so if an employer has a policy or practice of not hiring anyone with a felony conviction, that could also implicate federal and state employment discrimination laws.
Remedies for Criminal Record Discrimination
If an applicant or employee believes they have been discriminated against based on their criminal record, they may file a complaint with the California Department of Fair Employment and Housing (DFEH) or hire an attorney, like Kluft Law, P.C.
Remedies for successful claims may include:
Reinstatement
Front Pay
Back pay
Damages for emotional distress
Attorney fees
Criminal record discrimination and background checks in California are subject to specific laws and regulations that protect the rights of job applicants and employees.