Employer use of Arrest and Conviction Records for Hiring

By: Jennifer Cooper

Applicants with criminal records have some legal rights under California and Federal law. California provides a variety of protections for applicants with criminal records.

For example, California employers may not ask about or consider the following:

• Arrest records. Employers may not ask an applicant about prior arrests that did not lead to convictions or seek or use records related to such arrests. Employers may ask applicants about arrests that did lead to conviction and arrests for which the applicant is awaiting trial (for example, because the applicant is out on bail or has been released on his or her own recognizance pending trial).
• Diversion programs. Employers may not ask about an applicant's referral to or participation in a pretrial or post-trial diversion program.
• Sealed records. Employers may not ask about convictions that have been sealed, expunged, or statutorily eradicated.
• Certain marijuana offenses. Employers are prohibited from asking about non-felony convictions for marijuana possession that are more than two years old.
• Juvenile records. Employers may not ask applicants about juvenile records relating to arrest, detention, processing, or adjudication while the applicant was subject to the juvenile court system. California does not consider juvenile court decisions to be "convictions" that employers could otherwise inquire about.

If an employer wants to order a criminal background check from a third party, it must comply with the Federal Fair Credit Reporting Act (FCRA). The FCRA requires employers to get the applicant’s written consent beforehand and provide certain notices if the employer decides not to hire the applicant based on the contents of the report. 

​The California Fair Employment & Housing Council, the agency that enforces state discrimination laws, has also issued guidance for employers on how to avoid discrimination when considering an applicant’s criminal record. If an employer is considering criminal history and the conviction has an adverse impact on a protected class, it must be job-related and consistent with business necessity.  
An employer must consider whether the criminal history would make the applicant unfit for the position or would pose an unacceptable level of risk to the company, for example an applicant convicted of theft may not be acceptable to work at a bank. If the employer learned about a conviction from any source other than the applicant, it must provide notice to the applicant and a reasonable opportunity for the applicant to show the conviction is inaccurate.

If you require assistance understanding your rights as an employer or any other matter related to your business, please DSA HR Solutions us at info@dsahrsolutions.com or (707) 361-5385.

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