Are there any local laws that affect criminal background checks?
Employers conducting criminal background checks in California are limited by state and federal law in terms of the information that can be obtained and how it can be used.
In addition, two California cities—Los Angeles and San Francisco—have ordinances that further limit the use of criminal background checks, including by prohibiting employers from asking about criminal history on job applications, limiting when and how criminal history information can be obtained and used, and imposing notice and posting requirements.
Los Angeles Ordinance
The Los Angeles Fair Chance Initiative for Hiring Ordinance applies to all employers located or doing business in Los Angeles and that employ 10 or more employees. It applies to individuals applying for positions that will involve at least two hours of work per week in Los Angeles.
Under this ordinance, employers cannot ask about criminal history on job applications. Employers can inquire only about criminal convictions, and only after making a conditional offer of employment (an offer that is conditioned only on an assessment of the applicant’s criminal history and the duties of the position sought).
Employers cannot take any adverse action against an applicant based on criminal history without preparing a written assessment that links the applicant’s criminal history to risks inherent in the position sought.
Under the Fair Chance Process, employers must give the applicant written notification of the proposed adverse action, a written assessment, and any information supporting the adverse action. The applicant gets at least five business days to provide the employer with information about the accuracy of the criminal history, or information about rehabilitation or other mitigating factors.
Employers must consider any information provided and prepare a written reassessment. If an employer moves forward with the adverse action, it must notify the applicant and give him/her a copy of the written reassessment.
An employer also must state, in all job solicitations, postings and advertisements, that it will consider applicants in a manner consistent with the requirements of the ordinance. Employers must post an official notice in every workplace that applicants visit in the City of Los Angeles.
San Francisco Ordinance
San Francisco’s Fair Chance Ordinance applies to all employers located or doing business in San Francisco, and having 20 or more employees (regardless of location). The ordinance applies to individuals whose duties would include an average of eight hours of work per week in San Francisco.
This ordinance prohibits employers from asking about criminal history on job applications. Employers can inquire about criminal convictions and unresolved arrests (an arrest that is undergoing an active criminal investigation or trial and has not yet been resolved), but not until after the employer conducts a live interview (in-person or by phone, videoconference or other technology), or makes a conditional offer of employment.
Once an employer gets criminal history information, it must conduct an individualized assessment to determine if the criminal history is “directly related” to the applicant’s ability to perform the job being sought.
Before taking adverse action, employers must notify the applicant of the proposed adverse action, provide a copy of the background check report, and inform the applicant of the basis of the adverse action. The applicant has seven days to provide evidence that the conviction history is inaccurate, or evidence of rehabilitation or mitigating factors.
Employers must delay the adverse action for a reasonable period to reconsider the adverse action. If an employer proceeds with the adverse action, it must notify the applicant.
Employers must post an official notice at every workplace in San Francisco informing applicants and employees of their rights under the ordinance, and provide the notice before conducting background checks. Job postings must state that an employer will consider qualified candidates with criminal histories in a manner consistent with the ordinance.
Criminal Background Checks
If you are using or considering the use of criminal background checks, consult with legal counsel to ensure you are complying with all applicable state, federal and local laws.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.