We ran a criminal background check on a prospective new employee and the check revealed some criminal history. Can we choose to revoke the job offer now?
Over the past several years, both the California Legislature and the California Civil Rights Council (formerly known as the Fair Employment and Housing Council) have placed an increased focus on an employer’s ability to revoke job offers due to a prospective employee’s criminal history.
For an employer to even conduct the background check under California’s “ban-the-box” law, the employer must first provide the applicant with a conditional job offer. This means the employer cannot ask about criminal history at the application or interview or reference check stage until an offer of employment has been made.
Once the offer has been made, the employer may inform the prospective employee that the offer is contingent upon a successful criminal background check. If the background check returns some criminal history, an employer must complete the “fair chance process” before revoking the offer.
If an employer is considering revoking a job offer due to the criminal history revealed during the background check, the employer must assess how that specific criminal history affects the prospective employee’s ability to perform their specific job functions. Employers must consider the following:
• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and completion of any criminal sentence; and
• The nature of the job held or sought.
This means that the employer must compare the specific offenses to the proposed job duties.
For example, if a criminal history report reveals that the prospective employee was convicted of a felony driving while under the influence, but they will not be doing any driving as part of the job, the criminal history has limited impact on the nature of the job sought.
Conversely, if the criminal history yields serious violent crimes and the position will work closely with the public, an employer may determine that the nature of the offense or conduct greatly affects the prospective employee’s ability to perform the job duties.
Once the employer has performed an adequate individualized assessment and determines that the criminal history warrants revoking the job offer, the employer must follow a pair of notice procedures.
First, the employer must provide a preliminary notice to the prospective employee that includes all the following:
• The identity of the disqualifying conviction;
• A copy of the conviction history report, if any;
• Informing them of their right to respond to the notice within a deadline of at least five business days before a final decision is made; and
• An explanation that the response can include evidence challenging the accuracy of the report and/or evidence of rehabilitation or mitigating circumstances.
If the prospective employee notifies the employer within the deadline that they will dispute the report’s accuracy and are obtaining evidence to that effect, the employer must provide the prospective employee with at least another five business days to do so.
Once the prospective employee has submitted evidence, or declined to do so, and the employer still wishes to revoke the offer, the employer must provide a final notice that includes the following:
• The final denial or disqualification;
• Any existing procedure the employer has for the prospective employee to challenge the decision or request reconsideration; and
• The prospective employee’s right to file a complaint with the California Civil Rights Department (formerly the Department of Fair Employment and Housing).
If an employer has a question about any aspect of this process, they should consult with legal counsel to ensure compliance with these criminal history check rules.
Column based on questions asked by callers on the Labor Law Helpline, 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.