Job hunting has never been easy, having a criminal record certainly does nothing to help it make it any easier. Studies have shown that most employers actively perform background checks to screen potential employees. They often also ask about applicants’ criminal histories during interviews.
Unfortunately, this is bad news to the roughly 8 million California residents out there, which is around 1 in 3 people in California. On the bright side, several California State Laws protect people with criminal records.
Under U.S. Federal laws, as well as California laws, it is illegal for employers to deny an applicant a job based on certain characteristics including religion, ethnicity, and race. Taking into account that Black people and Latinos are more likely to be incarcerated and imprisoned unjustly, it is then problematic for an employer to have a policy that denies anyone employment just for having a criminal record.
An applicant may be able to file a case against the employer on the grounds of racial discrimination should the employer have a blanket policy such as that. If you have been denied employment just because of your criminal history, don’t hesitate to contact one of our Gold River, CA Criminal Defense Attorneys at The Chastaine Law Office.
To circumvent this, the federal Equal Employment Opportunity Commission (EEOC) highly discourages denying an applicant employment on the grounds of a criminal record. Instead, the commission proposed a guide to screen such applicants better.
This involves assessing the applicant’s records to see if the record poses an unreasonable amount of risk. It also involves allowing the applicant to explain the circumstances of his record.
The California Fair Employment and Housing Council also suggests something similar- look deeper into the criminal charge and assess whether or not the person is unfit for the job or poses a very high level of risk, and not just basing all judgments off of having a criminal charge.
Background Check Rules
Criminal record checks are regulated by the federal Fair Credit Reporting Act (FCRA) as well as California State Law. Both require employers to get written consent from an applicant to gain authorization to do a criminal conviction records search before performing a background check. Employers will also be required to give notice to the applicant if he is rejected based on the contents of the criminal record check.
Additionally, California State law says that an employer may only look into a person’s criminal records for the past seven years and nothing beyond that. The employer will also have to give the applicant a copy of the background screening report within seven days, especially if the applicant will not be hired based on the history search.
Third-party background check services are similarly bound by these rules. They can only perform a criminal history background check if the employer has received consent from the applicant for a pre-employment screening to check for any criminal information.
Off-Limits Criminal Records
According to California laws, some criminal records are off-limits to employers. They may not look into or ask about these records both during the application process and as an employee if he is accepted. These include:
The California judicial system does not consider decisions by the juvenile court to be convictions per se. So, employers are not allowed to ask applicants about their juvenile records and juvenile offenses including detentions, arrests, processing, and adjudications.
Certain Marijuana Offenses
Non-felony convictions for possession of marijuana more than two years old are off-limits for employers.
Records that have been sealed, statutorily eradicated, and expunged are also off-limits to employers.
Employers may not inquire about a person’s involvement, participation, or referral in a diversion program, both pre-trial and post-trial.
Arrest records that did not lead to convictions are off-limits to employers, however, they may ask about arrests that led to the conviction and awaiting trial.
California Ban-the-Box Law
Since 2018, California has amended the California Fair Housing and Employment Act (FEHA) which made it illegal to ask applicants about their criminal records in the early stages of applying for a job. Employers must first assess if a person is well suited for a job, before having access to their criminal records.
Once a person has been deemed favorable by an employer, the employer may make a conditional offer of employment. It is at this stage that an employer can ask an applicant about their criminal records. Of course, these are still subject to limitations as some records are off-limits.
Once the employer sees the criminal records, he must then assess to see if the records are in direct and adverse relationship to the job. The employer must assess the nature of the job, the nature and severity of the offense, the time since the offense has been committed, and the current disposition of the applicant.
For instance, it may be wise to reject an applicant for a driver position if he has multiple driving record violations. However, the position may be open to someone who only has light misdemeanors, especially if it shows that his record has been clean for the succeeding years.
Giving Notice and Notice of Final Decision
Once an employer rejects an applicant based on his criminal record, the employer must give notice to the applicant stating the conviction for which he was rejected, a copy of the report, and explain the applicant’s right to respond within a set period.
The applicant is then allowed to collect evidence to submit to the employer within five days. The evidence can be to fully disprove the claimed conviction or to show that steps have been taken to correct the conviction, such as going to rehab and therapy.
An applicant must be given an extension of five more days if he notifies the employer that he is still gathering more evidence on the fifth day of the original deadline.
Once the applicant has submitted the evidence, the employer must once again look into the facts. If the employer still chooses to reject the applicant, he must do so with a notice of final decision which discusses the applicant’s rejection, the procedure for challenging the decision, and the applicant’s right to file a complaint to the California DFEH.
If you think that you have been unjustly denied a job just because you have a criminal record that isn’t even related to the job, don’t hesitate to contact one of our criminal defense attorneys at The Chastaine Law Office. We are a Gold River, California criminal defense law firm dedicated to protecting your rights.