Some employers will ask about prior convictions or felonies and prospective employees must legally disclose them. Here’s how to Disclose Criminal Record Job Application California.
Any convictions that extend past seven years will not show up on a background check. After a recent appellate court ruling in 2021, background checks have become increasingly hard to conduct because courts in California are now required to remove dates of birth, social security numbers, and other identifying information from court records.
The California Fair Chance Act
The California Fair Chance Act states that job applicants cannot be discriminated against based on their criminal history. As of January 1, 2018, it requires employers with five or more employees, subject to few exceptions, to follow certain procedures when inquiring about criminal history information for pre-hire purposes. Regardless of the source of the criminal history information, employers must do the following:
- Wait until after a conditional offer of employment to inquire about criminal history (asking applicants directly)
- Conduct an individualized assessment of an applicant’s conviction to determine whether it has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”
- Notify the applicant of any potential adverse action based on the conviction history along with identification of the conviction, a copy of conviction history report, and state the deadline for the applicant to provide additional information that may include but is not limited to evidence of inaccuracy and rehabilitation
- After the requisite time period has passed, notify the applicant of the following:
- Any final adverse action
- Any existing procedure the applicant has to challenge the decision or request reconsideration
- The applicant’s right to file a complaint with the Department of Fair Employment and Housing
Related: California Exempt Employee Laws: Explained
The California Fair Employment and Housing Act make it unlawful for covered California employers with at least five employees to:
- Include a question that seeks the disclosure of an applicant’s conviction history
- Inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment
- Consider, distribute, or disseminate information about any of the following while conducting a criminal history background check of an employment application:
- An arrest that did not result in a conviction, is subject to the exceptions in Labor Code § 432.7(a)(1) and (f)
- Referral to or participation in a pretrial or post-trial diversion program
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated according to California law
“Off-limit” Factors in Employers Decision Making
Oftentimes, 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 a conviction, except if the employee or applicant is out on bail or if applicable, on their 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, or 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 the following:
- Arrests
- Detentions
- Processing
- Diversions
- Supervision
- Adjudications
- Court dispositions stemming from juvenile courts
Related: California Labor Code 1198.5: Employee Personnel Files
Understanding the Use of Criminal History
California notices are required even if the employer fails to order criminal background check reports from a CRA, and learns of the criminal history from a differing source like an applicant’s self-disclosure.
Unless they qualify for exceptions identified in the Labor Code, the majority of criminal records are prohibited to California employers. Records that cannot be used include the following:
- Arrests that did not lead to a conviction
- Non Felony marijuana convictions that are older than two years
- Juvenile records
- Diversions and deferrals
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If you or a loved one would like to learn more about Disclose Criminal Record Job Application California, get your free consultation with one of our Employment Attorneys in California today!