Indisputably having a criminal record affects your job search. According to research, most of the employers conduct background checks when hiring. One of the standard checks is to ask about the criminal history of the applicant. With a criminal record, this may end the hiring process even before the applicant gets to the later stages of the process. This may be illegal since job seekers with criminal records have some legal protection in California law.

Types Of Employment Background Checks

The main aim of performing the employment background check in California is to ensure that the employer hires an employee who doesn’t pose any threat to the workplace. This check is also referred to as “Investigative consumer report” This is most common when hiring, or any time an employer deems it fit to perform the check on the employees. When this happens illegally, an applicant or an employee can raise a complaint and get protection according to the applicable deferral and state laws. There are different types of background checks. Some of them include:

  • Criminal history checks
  • Drug screening
  • Credit report checks
  • Education verification
  • Credit background check

According to California’s ban-the-box law, it’s illegal for an employer to ask for any criminal record until he/she reaches the final stages of the hiring process. This is especially if he/she has more than five employees. The main aim of this law is to ensure no one is denied a chance to work due to his/her criminal history.

What Are The Legal Steps Involved In Employment Background Checks?

Employees and applicants have legal rights when employment background checks are being conducted. These checks shouldn’t be conducted based on religion, national origin, disability, age, or even race. If this happens, the background check is illegal. Additionally, the employer should not have any policy that excludes those with criminal records as long as the policy doesn’t relate to the job and is consistent with the business requirement. California law requires that an employer give an extensive notice before any employment background check is conducted. The notice should be in writing, and on a separate document. He/she is supposed to:

  • Obtain the employee or applicant permission
  • Give notice if your former employer, neighbors, or any other person is to be interviewed about your reputation, character, or your mode of living.
  • Give you an adverse action notice if the information obtained if the employer decides not to hire you. The notice must include:
    • The basis (conviction) used to come up with the decision.
    • A copy of the conviction used, if any.
  • A summary of consumer rights

However, if your employer suspects some misconduct, he/she may perform the check with no prior consent.

If the Investigative Consumer Reporting Agency is conducting the background check, an outside screening company, the following should be done:

  • The name and address of the company should be given.
  • The company should state the purpose of the report.
  • There should be a summary of your rights to respond in case of any favorable evidence at a given time.
  • The report should have a box to check; this is for you to indicate whether you want a copy of the report. If need be, the report should be sent to you either by the screening company or from the employer. This should be done within a stipulated time. You must be given approximately five days to bring up any complaint challenging the accuracy of the information obtained. In case you find the report is not correct, you have the right to dispute it. Again, your employer should give you five more days to respond to the notice. This is in case you notify your employer that you’re obtaining evidence. With this, the screening company may repeat the investigation. If this does not happen, you may seek legal help from an employment attorney who may help you verify the mistaken identity or any other information that may have been omitted.

Your Employer Should Make A Conditional Offer Of Employment.

There should be no question of whether you have ever been convicted in your employment application. Your employer should make a conditional offer of employment when inquiring about or considering having any conviction record. If he/she resolves not to employ you based on your criminal record, an individualized assessment must be conducted to determine the relationship of the criminal record and the specific duties of the job position. In such a case, your employer should consider the below:

  • The nature and severity of the offense that was committed
  • The time elapsed since the offense was committed and whether the sentence was served
  • The nature of the vacant position being applied for

Legal Help

Employers may discriminate against some employees or applicants against their criminal records, and this is illegal. If you believe your rights have been infringed as an employee or while applying for a job, you should contact an employment attorney in California to help you protect your rights.