Understanding Employment Background Checks in California

Federal and California laws regulate the use of background checks in the employment process. As an employment lawyer, TONG LAW is here to help you navigate these regulations and protect your rights.

Federal Law and Background Checks

Federal law does not expressly prohibit an employer from conducting background checks on applicants or employees, but it does require that background checks not violate Title VII protections. To prevent discrimination in the hiring process, employers are prohibited from implementing background checks that cause “disparate treatment” or “disparate impact.” This means that an employer cannot implement background checks for only a particular group of people with a similar characteristic, such as race discrimination. Additionally, if a required background check disproportionately affects a certain class of people based on protected characteristics, it may be discriminatory.

California’s Fair Chance Act (FCA)

California’s Fair Chance Act (FCA) offers more protection than the federal government for applicants and employees. For example, an employer with 5 or more employees may not perform a background check on a job applicant in the State of California until after a conditional offer of employment has been extended. That means that it is a violation of California law for an application to contain a section that requires an applicant to answer questions about criminal history if a conditional offer has not been extended to that individual. It is also a violation for an employer to post a blanket statement in job advertisements, such as “No Felons.”

Individualized Assessment

If an employee does have a past criminal conviction, employers are required to perform an individualized assessment to weigh the type of conviction, the time that has passed since the conviction, and the nature of the job to be performed. If the employer decides to rescind the job offer based on an applicant’s criminal history, they must tell the person so in writing, provide a copy of any conviction history report they relied on, and give the person at least five business days to respond. The criminal history used to disqualify a candidate must also have a direct relationship with job responsibilities. The California Civil Rights Department created an online interactive guide for affected individuals to determine if the protections of The Fair Chance Act apply to them.

The Fair Chance Act Protections

It is important to remember that The Fair Chance Act prohibits employers from considering any of the following when deciding whether to hire a job applicant:

• Arrests without a conviction
• Detentions without a conviction
• Referral to or participation in diversion programs
• Dismissed convictions
• Sealed convictions
• Juvenile court criminal history

If you have been subjected to a discriminatory background check, we are here to help. At TONG LAW, we have experience assisting employees who face discrimination in the workplace.