EMPLOYMENT BACKGROUND CHECKS
California Employment Law
Recent ruling concerning release forms by ninth circuit.
Single combined state and Federal release forms no longer adequate.
Employers conducting background checks in Alaska, Arizona, Idaho, Montana Nevada, Oregon and Washington State should be aware of this ruling and take steps to comply with this ruling.
In Gilberg v. Cal. Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (Ninth Cir. Jan. 29, 2019), the Ninth Circuit held a single form combining nearly identical federal and state disclosures violates both federal and state laws.
Employers who conduct pre-employment background checks must now provide applicants with two separate standalone forms:
(1) disclosure and consent under Fair Credit Reporting Act; and
(2) disclosure and consent under California’s Investigative Consumer Reporting Agencies Act (or other applicable state law).
California law places restrictions on the prospective employers ability to ask about certain criminal records while protecting the applicant from any requirement to disclose certain arrest information.
Local And State Ban-the-Box Laws Restrict The Use of Criminal History
Los Angeles and San Francisco employers must also comply with ban-the-box ordinances in these cities.
The Ban-The-Box laws enacted by these cities impose more stringent requirements than those found in the FCRA and the California ban-the-box law.
For pre-employment screening purposes. as of Jan. 1, 2018 California’s statewide ban-the-box law, requires employers with five or more employees,with few exceptions, must follow certain procedures when it comes to requesting and using criminal history information.
Specifically, no matter what the source of the criminal history information, employers are required to:Not inquire about criminal history, until a conditional offer of employment has been made.
This includes asking applicants directly about whether or not they have been convicted of a crime.Ordering or obtaining a criminal history background check.Making any other inquiry about an applicant’s criminal history.
Conduct an individualized assessment of an applicant’s conviction to determine whether it has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”California law does not require employers to provide the applicant with their assessment but the Los Angeles ban-the-box ordinance does impose this requirement on employers.
Unlike the FCRA pre-adverse and adverse action notices which are only required if the adverse decision is based on information obtained from a CRA background check report.
The California notices are required even if the applicant discloses the record, and even if the employer doesn’t order criminal background check reports from a Credit reporting agency or background check company. Employers must also notify the applicant of any potential adverse action that are based on the conviction history.
The adverse action notice must identify the conviction and include a copy of any conviction history report no matter from which source it was obtained..
The adverse action notice must also state the deadline for the applicant to provide additional information, such as evidence of inaccuracy, rehabilitation or other mitigating circumstances.After the required time period has expired, the employer must also notify the applicant of any final adverse action.
The employer must also notify the applicant of any existing procedure the applicant may have to challenge the decision or request reconsideration.The employer must also notify the applicant of the right to file a complaint with the Department of Fair Employment and Housing.
As a result of this recent legislation, a number of criminal records are now unavailable to employers.These records no longer available for use include.
The Los Angeles Fair Chance Initiative for Hiring OrdinanceSan Francisco’s Fair Chance Ordinance As of Aug. 13, 2014, San Francisco became California’s first city to enact a ban-the-box law.Employers with five or more employees working in San Francisco that intend to inquire about and consider criminal history (regardless of the source) also must:
Provide the applicant or employee with a copy of the Office of Labor Standards Enforcement’s (OLSE) Fair Chance Act Notice before inquiring about criminal history or ordering a criminal history background check.
2. Post the OLSE Notice “in a conspicuous place at every workplace, job site, or other location in San Francisco under the employer’s control frequently visited by their employees or applicants.”
Employers must also “send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding, that is applicable to employees in San Francisco.”
The posted notice must be in English, Spanish, Chinese, and any language spoken by at least 5 percent of the employees at the workplace, job site, or other location at which it is posted.The notice currently is on the OLSE website.
Covered San Francisco employers are barred from considering the following types of criminal records (even though these records are not off-limits in other California cities), subject to narrow exceptions:
Convictions that are older than seven years (measured from the date of sentencing).
Any conviction that arises out of conduct that has been decriminalized since the date of the conviction, measured from the date of sentencing (which would include convictions for certain marijuana and cannabis offenses).
Efective Jan. 22, 2017,The Los Angeles ordinance applies to any employer with 10 or more employees that is located or doing business in the City of Los Angeles.
An employee is defined as any person who performs at least two hours of work on average each week in the City of Los Angeles and who is covered by California’s minimum wage law.
The ordinance also applies to temporary workers, seasonal workers and independent contractors.The law also applies to job placement and referral agencies.The much stricter Los Angeles ordinance extends beyond California state requirements and imposes even more cumbersome requirements on employers when considering criminal history from any source.
The employer is required to perform a written assessment that “effectively links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the employment position sought by the applicant.
“The city’s website is a source for the assessment form and the factors considered relevant.Employers must also provide the applicant a “Fair Chance Process”which provides the applicant an opportunity to furnish information or other documentation the employer should consider before making a final decision.
This would include evidence that the criminal record is inaccurate, evidence of rehabilitation or other mitigating factors.
As part of this process, the employer must include with the pre-adverse action notice a copy of the written assessment and any other information supporting the employer’s proposed adverse action
Employers mus also wait at least five business days to take adverse action or fill the position.
If the applicant provides additional information or documentation, the employer must consider the new information and perform a written reassessment, which is at the bottom of the form mentioned above.