California has enacted several laws and regulations to protect job applicants and employees with criminal records from unfair discrimination. As an employment attorney specializing in wrongful termination, it is important to help clients understand their rights and how these laws apply to their situations. This article will provide an overview of criminal record discrimination and criminal background checks in California, ensuring that both employers and employees are aware of their rights and responsibilities under state law.
“Ban the Box” Legislation
In California, the “Ban the Box” law, also known as the Fair Chance Act (AB 1008), prohibits employers with five or more employees from asking about a job applicant’s criminal history before making a conditional offer of employment. This law aims to give applicants with a criminal record a fair chance at employment, ensuring they are not unfairly disqualified due to their past convictions.
Criminal Background Checks
Once a conditional offer of employment has been made, California employers may conduct a criminal background check. However, they must follow strict guidelines and cannot consider certain types of criminal records, such as arrests that did not lead to a conviction, expunged or sealed records, or non-felony marijuana offenses that are more than two years old.
Individualized Assessment
When an employer in California discovers a criminal record during a background check, they are required to conduct an individualized assessment to determine whether the conviction is directly related to the job responsibilities. Factors that must be considered include the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job sought. Employers must provide applicants with an opportunity to explain or dispute the accuracy of the criminal record.
Adverse Action and Notice Requirements
If an employer decides to take adverse action, such as rescinding a job offer or terminating employment based on a criminal record, they must notify the applicant or employee in writing. The notice must identify the conviction that led to the decision and provide a copy of the criminal record report. The employer must also inform the individual of their right to respond and dispute the accuracy of the report within five business days.
Remedies for Criminal Record Discrimination
If an applicant or employee believes they have been discriminated against based on their criminal record, they may file a complaint with the California Department of Fair Employment and Housing (DFEH). Remedies for successful claims may include reinstatement, back pay, damages for emotional distress, and attorney fees.
Criminal record discrimination and background checks in California are subject to specific laws and regulations that protect the rights of job applicants and employees. Understanding these rights is crucial for both employers and employees to ensure compliance and fair treatment. If you believe you have been unfairly discriminated against due to your criminal record, consult with Sanford A. Kassel, A Professional Law Corporation, an experienced wrongful termination employment law office to discuss your options and rights.
