January 11, 2017 Category: Uncategorized
Although it has a limited application, the Los Angeles Fair Chance Initiative for Hiring is probably the most restrictive law in the country, in terms of keeping criminal records out of the hiring process.
Ordinance 184652 applies to companies with 10 or more employees who want to do business with the City of Los Angeles. In addition to purging any questions about criminal history from employment applications, a move that many jurisdictions already require and the Equal Employment Opportunity Commission recommends, the measure forbids employers from asking about such information until after they’ve made conditional employment offers. Furthermore, employers can only withdraw the offer after they engage with the applicants and complete written assessments.
After a grace period expires on July 1, 2017, the city will impose fines of up to $500 for a first violation or recordkeeping infraction.
Criminal Backgrounds and the Hiring Process
Nationally, over two-thirds of employers say they routinely either perform criminal background checks on applicants or require them to disclose this information very early in the process. The percentage may be a little lower in California because although negligent hiring is a recognized tort, the applicable law is somewhat narrow. Here in the Golden State, for an employer to face negligent hiring liability, there must be a relationship between the harm and the criminal record. So, an home healthcare firm is only liable for damages if a caregiver with an assault record commits another assault.
California has a limited “ban the box” law which prohibits employers from asking about criminal histories on employment applications. Essentially, these documents can only ask about core job qualifications, and a clean criminal record does not qualify as such except in limited circumstances, like law enforcement jobs.
Thereafter, if employers run separate background checks, this information is subject to the Fair Credit Reporting Act. To comply with the FCRA and other applicable federal laws, employers must:
- Provide Notice: This notice cannot be buried somewhere on the employment application and must be in writing.
- Type of Report: If the check will include a more comprehensive “investigative report” that includes more information than just conviction history, potential employees must be notified separately.
- Background Check: If the company ran a separate check and basis adverse action on such a report, it must so notify the applicant and use very specific language when doing so.
Any compliance failure, no matter how seemingly trivial, can serve as a basis for a claim for damages. In these cases, compensation can be significant, and punitive damages may be available as well.
A criminal past is not a job-disqualifying event in and of itself. For a free consultation with an assertive employment lawyer in San Jose, contact the Briski Law Firm. Mr. Briski has about three decades of experience.