Applicant’s Criminal History – What Not to Do!

Written by Sarah Woolston, Employment Law Subject Matter Expert, CalChamber

It can be very tempting to ask about felony convictions during the application process as a way to filter candidates. If you have five or more employees, however, you cannot include a question on your application asking whether the applicant has any prior felony convictions.

In fact, you cannot ask about criminal history at any time before the conditional offer of employment has been made. Covered employers cannot include any question on a job application that directly or indirectly seeks the disclosure of the applicant’s conviction history. You cannot inquire or consider the conviction history of an applicant until after a conditional offer of employment has been made.

Fair Chance Laws

It used to be common for job applications to include a box that applicants would mark to note they had a felony conviction. This practice, however, drastically affected a felon’s fair chance at a job for which they otherwise would be qualified.

This is where state and local “ban-the-box” laws came in to protect applicants from having to disclose a felony conviction without a fair chance to explain any past convictions.

California’s Fair Employment and Housing Act (FEHA) and several local ordinances protect against the use of criminal history as a basis for making an offer of employment. The reason the timing is after an offer has been made is so that an applicant is not evaluated for the position based on a past conviction.

Limited Exceptions

The very limited exceptions to California’s “ban-the-box” law include:

• Positions for which a state or local government agency is required by law to conduct a conviction history background check;
• Positions with a criminal justice agency;
• Farm labor contractors (as defined in Labor Code Section 1685); or
• Positions in which an employer is required by any state, federal or local law (including the Securities Exchange Act) to check criminal background for employment purposes or to restrict employment based on criminal history.

Employers who must conduct criminal background checks to comply with various state or federal laws should consult with legal counsel.

After Conditional Job Offer

There are lawful ways you can protect your business. Once you make a conditional offer of employment, you may seek conviction history information if you follow a specific process and comply with strict notice requirements.

If you improperly obtain or use criminal history information, you can be subject to a civil lawsuit. An applicant can bring an action to recover actual damages or $200, whichever is greater, plus costs and reasonable attorney fees.

If the violation is intentional, the applicant is entitled to three times actual damages or $500, whichever is greater, plus costs and reasonable attorney fees.

In addition, an intentional violation is a misdemeanor punishable by a fine not to exceed $500. Furthermore, a violation of the ban-the-box law can result in a lawsuit under the California FEHA.

An applicant or employee also can bring a discrimination lawsuit under FEHA if the applicant or employee can show that the criminal background check practice had an adverse impact on a protected class.