Since January 1, 2018, California has had a "ban-the-box" law that prohibits most employers in the state with five or more employees from asking in the initial stages of the onboarding process whether job applicants have had criminal convictions. We discussed the law in detail in an earlier post.
The Fair Chance Act says that an employer cannot conduct background checks that include criminal history, or make inquiries about convictions, until the employer has made a conditional job offer. (There are a few exceptions, such as for employers offering jobs that require background checks by law such as those involving work with children or vulnerable adults.)
Get legal guidance about compliance
If an employer learns about a criminal conviction after it made a conditional job offer and is considering revoking the offer because of the conviction, it is a good idea to consult with a lawyer. The "ban-the-box" law requires that a detailed process begin at this point, and an attorney can advise the employer about how to comply.
Specifically, the employer must carefully assess the nature of the job applied for, whether the conviction(s) has a "direct and adverse relationship" with the specific job duties that would support rejecting the applicant, considering the "nature and gravity" of the offense, how long ago it was, and whether the applicant completed his or her sentence.
For example, if the conviction was for drunk driving 20 years ago, the employer may nevertheless be comfortable hiring the individual if the job will not involve driving a vehicle or operating dangerous machinery.
If the employer decides at this stage to reject the applicant because of the conviction, the decision must be preliminary because the law gives the applicant certain rights. The employer must give written notice of this decision, including naming the conviction and explaining that the applicant has at least five business days to respond.
The applicant may challenge the conviction record and provide information about "rehabilitation or mitigating circumstances, or both." If the applicant is disputing the conviction history, notifying the employer of this within the five days triggers another five days for the applicant to gather supporting evidence.
Once the applicant's time to respond has passed, the employer must consider everything the applicant submitted before making a final decision. If an employer rejects the applicant, they must do so in writing. It is optional to explain the reasoning, but the notice must communicate any process the employer has for reconsideration as well as the applicant's right to file a complaint with the California Department of Fair Employment and Housing if the applicant alleges the employer violated the ban-the-box law.
Basically, the Fair Chance Act is designed to give people with criminal records more chance of getting hired for positions for which they are qualified. The law has teeth, since an applicant can file a complaint if he or she thinks an employer has violated the ban-the-box procedures.
Negligent hiring claims
Employers must integrate this new process into a legal scheme that already includes employer liability for "negligent hiring." Under this theory, if an employer hires someone who is unfit for the job or who poses a threat to others in the workplace and someone is harmed thereby, the victim can sue the employer for negligent hiring.
The classic example of negligent hiring is when an employer knowingly hires someone with a past conviction for a violent crime, and then the new employee harms a co-worker or customer. Another example is when an employer hires someone with a known conviction for theft or financial fraud and the person steals from other employees.
Interestingly, SHRM recently published a detailed article about these issues in which it cites an Oakland expert as saying that the link between criminal conviction and "workplace misconduct" is exaggerated, and that these individuals are no more likely to engage in workplace misconduct than anyone else, according to current research. According to that expert, employers should not allow fear of negligent hiring to dampen the emerging trend of employers giving people with criminal histories a second chance.
Developing a relationship with an experienced, knowledgeable lawyer who can provide guidance in these sometimes-difficult hiring decisions can be crucial. Such a legal professional can help a California employer walk the line between these two areas of hiring responsibility, especially in light of the conflicting pressures of avoiding liability under either ban-the-box law and negligent hiring claims.