California now restricts the consideration of some criminal convictions in job applications. The Fair Chance Act, that took effect in Jan. 2018, prohibits most employers from asking about the applicant’s criminal record. But this law has some exceptions which may make a criminal defense even more important.
This ban the box law prohibits employers from placing questions on an application about conviction history before a conditional job offer was made. Employers may not consider or ask about a criminal history before making a conditional offer.
Employers can conduct a background check after offering the job, but they must individually assess the applicant’s criminal history. The offer cannot be withdrawn unless the employer considers the convictions’ nature and impact, the time elapsed since the conviction and the nature of the job.
After a conditional offer, employers may ask about any conviction history. Employers, however, cannot consider arrests that did not led to a conviction, participation in pretrial or posttrial diversion programs or convictions that were expunged, sealed, dismissed or legally eradicated.
If a job offer is withdrawn because of a criminal history, employers must provide a written explanation and furnish the applicant with a copy of the criminal history report. Employers need to tell applicants that they have five business days to respond. Applicants have five more business days if they dispute the conviction history. Employers must tell rejected applicants that, in addition to challenging their history, they can present evidence of important circumstances or rehabilitation.
Employers must consider the applicant’s response. If the applicant is rejected again, employers should provide written notice of the rejection, procedures for challenging the disqualification and their right to file a complaint with the department of fair housing and employment.
This law governs public and private employers that have at least five employees. But it does not apply to certain jobs at heath care facilities, farm labor contractors and positions at state criminal justice agencies.
Employers may also comply with other laws that require criminal history checks or restrict hiring. But applicants may challenge the use of these histories as discriminatory if it negatively impacts individuals because of race or other protected class.
Applicants may file a complaint with the state within one year. Even with this law, however, convictions can still impact some careers and professions. An attorney can help fight or lessen the severity of a crime.