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Can My Criminal Record Legally Prevent Me From Getting a Job in California?

Employee

It is a fact that the conviction rates in America for African Americans and Hispanics are substantially higher rate than whites in the United States. So, if an employer declares it will not hire anyone with a criminal record–regardless of the circumstances or job-requirements–such a policy may have a measurable and adverse impact on minority workers, even if that was not the intent of the policy. As a result, and in an effort to curb this adverse impact, California recently adopted new legislation restricting the ability of most private employers to ask about a job applicant’s criminal history prior to making a conditional offer of employment.

What You Need to Know About California’s ‘Ban the Box’ Law  

The California Fair Chance Act (Ban the Box law) went into effect in the state on January 1st, 2018. Under the law, private employers in California are generally restricted from asking about a job applicant’s criminal record.

Without limited exceptions, employers can only inquire about a job applicant’s criminal record after they have made a conditional offer of employment. At that point, employers cannot deny the applicant because of a conviction without making an individualized assessment. When conducting an individualized assessment, California employers can only revoke a job offer if they follow certain steps. More specifically, employers must:

  1. Consider the nature and age of the conviction;
  2. Consider whether the conviction is actually related to the applicant’s future job duties;
  3. Notify the employee in writing of any intent to revoke or modify job offer;
  4. Attach a copy of the conviction record to the intent letter and give the applicant five days to respond; and
  5. Review the response from the employee and offer a second notification of the ultimate hiring decision.

Notably, Ban the Box prohibits most employers from considering any criminal history that did not result in a conviction. This includes arrests (with very limited exceptions), participation in a diversion program, and convictions that have been expunged.

Federal Laws Also Provide Protections Regarding Background Checks

California workers also have important rights under federal law. When a criminal record is provided to an employer by a credit reporting agency, the company has a legal obligation to comply with the requirements of the Fair Credit Reporting Act (FCRA). When an employer is making a hiring decision based on a criminal record obtained through a credit report, the employer must:

  • Get permission from the job applicant prior to obtaining the credit report;
  • Should the employer intend to take adverse action based on the report, provide the applicant with a Summary of Rights;
  • Offer the applicant an opportunity to address the issue, potentially including correcting inaccurate or misleading information; and
  • Notify the applicant that the adverse employment action is based on the information within the credit report.

If you have any questions about background checks and employee rights, you should speak to an experienced California employment lawyer as soon as possible.

These Employment Practices Are Not Limited to Employers in California: Target Settles NAACP Class Action Over Blanket Exclusion of Applicants With Criminal Records

Recently Target Corporation–which operates approximately 280 stores in California alone–agreed to settle a class action spearheaded by the NAACP Legal Defense and Educational Fund over that company’s policies regarding the use of criminal background checks. The two named plaintiffs in the lawsuit, Times et. al v. Target Corporation, 1:18-CV-02993  (S.D.N.Y. Apr. 5, 2018), ,which was filed in early April in a New York City federal court, said they received conditional job offers that were later withdrawn after Target conducted criminal background checks. Although both plaintiffs disclosed their prior convictions during the interview process, they argued that their past crimes had no relevance to the positions they sought.

According to a statement issued by Target and published by CNN, the company said while it started asking job applicants about their criminal records about a decade ago, it had since “revised our hiring practices, removing the criminal history question from our employment application nationwide.” Target says it now only inquires about criminal history during the “final stages” of its interview process, and only then to assess whether an applicant’s past crimes “could pose a risk” to customers.

Under the terms of the settlement with the NAACP, African American and Latino job applicants who were denied jobs with Target under the company’s prior criminal background check policy could re-apply for positions or “potentially obtain a cash reward,” according to CNN.

When Is It Okay to Consider Criminal History?

Under California’s Ban the Box law, there are some exceptions to the general restriction on considering criminal history. To start, employers with fewer than five total employees are not covered by the California Fair Chance Act. These companies are still permitted to consider criminal convictions in the application stage. In addition, other employers can make criminal history inquiries during that application stage if they are required to run background checks by law.

If you have a criminal history and have questions or concerns about your rights in the workplace, or believe you were wrongfully denied employment due to your background check, you should speak with a qualified California employment law attorney today. Your legal rights may have been violated.

Sources:

money.cnn.com/2018/04/05/news/companies/target-settlement-hiring-discrimination/index.html

dfeh.ca.gov/resources/frequently-asked-questions/criminalhistoryinfoinemploymentfaqs/

ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-credit-reporting-act

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