The statistics are little short of astonishing – nearly one-third of Californians have criminal records. If employers refused to hire anyone with a criminal record, how would that affect the unemployment rate? Fortunately, such is not the case. A decade old criminal conviction for possession of a user’s amount of marijuana, for example, is not likely to get you blacklisted except for certain sensitive positions, such as those requiring government security clearance.
A potential problem remains, however, for responsible citizens with criminal records who are searching for employment – and such people abound. California has responded by enacting the Fair Chance Act, an amendment to the California Fair Housing and Employment Act (FEHA).
This amendment limits the ability of employers with more than four employees to ask about many criminal convictions or discriminate against applicants with certain kinds of criminal records. The Fair Chance Act took effect on January 1, 2018.
Questions an Employer Cannot Ask Right Away
California employers cannot ask “Have you ever been convicted of a felony?” before first extending the applicant a conditional offer of employment. The purpose of this law is to force employers to give convicted felons a chance to prove themselves without being screened out at the beginning of the hiring process.
Questions an Employer Can Ask Only after a Conditional Offer of Employment
California’s Fair Chance Act does allow an employer to ask about criminal convictions after a conditional offer of employment has been extended. The employer cannot withdraw the offer based on a “yes” answer, however, without evaluating whether the offense has a “direct and adverse relationship” to the specific job duties the prospective employee will be required to undertake.
Due Process Obligations Once a Criminal Record Is Discovered
If, after due consideration of an applicant’s criminal record, the employer declines to hire the applicant, certain legal requirements kick in:
The employer must provide the rejected applicant a written notification that the reason he is not being hired is because of his criminal record.
The notification must (i) inform the rejected applicant of the specific conviction that was the basis of the employer’s decision not to hire him, (ii) include a copy of the rejected applicant’s conviction history report if one is available, and (iii) inform the rejected applicant of his right to respond within a deadline of no less than five days.
If the rejected applicant notifies the employer within five business days that he intends to respond, the employer must allow an additional five business days for the rejected applicant to respond (for a total of 10 business days).
The employer must provide notification of the final decision and, if the decision is unfavorable, the rejected applicant’s right to appeal to FEHA and through the company’s appeal process if such a process exists.
Criminal Records That Employers May Never Ask About or Consider in Their Hiring Decisions
Certain types of criminal records may ever be asked about or used as a basis to refuse to hire an applicant, including:
Arrests that did not result in a conviction;
Sealed records (expungements, for example);
Diversion programs; or
Certain minor marijuana convictions.
Contact CKB Vienna Immediately for Sound Legal Advice
If you are confused about the legal requirements concerning California’s hiring practices, if you anticipate a dispute with a job applicant, or if such a dispute has already arisen, call CKB Vienna today or contact us online to schedule a consultation where we can discuss your situation and answer your questions
We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.