The Candidate You Just Hired Has a Criminal Record!
What Do You Do Now?
You have the perfect candidate your company wants to hire. You followed all the pre-hire steps required by California’s Fair Chance Act also known as ‘Ban the Box’.
- You did not ask about their criminal record on the Employment Application or during the interview process.
- You made the candidate a Contingent Job Offer before conducting a criminal background check.
- You used a reputable background checking company to obtain the records.
When you receive the results, your great candidate has a criminal record! What do you do next?
California’s Fair Chance Act which became effective in 2018, has specific requirements for employers with five or more employees that they must follow in this situation. In addition, the Department of Fair Employment and Housing (DFEH) has issued new regulations effective October 1, 2020, related to the Fair Chance Act which has brought a new focus on how employers are complying with this law.
In addition to the requirements listed above, the employer can not deny the candidate the position solely based on their criminal record until they have performed an ‘individualized assessment’. This assessment must consider all of the following:
- The nature and seriousness of the criminal offense
- The time that has passed since the criminal offense
- When the sentence for the offense was completed, if applicable
- The specific job duties of the position and how the criminal record could impact the performance in the job
If the employer decides not to hire the candidate after performing this individualized assessment, they then must notify the candidate in writing of their preliminary decision. The employer does not need to explain their reasoning to the candidate but they do need to take the following steps:
- Provide the candidate with a written notice of the conviction(s) that are the reason for rescinding the job offer.
- Include a copy of the criminal report
- Inform the candidate, they have the right to respond to the notice within 5 business days. Their response can be to provide evidence showing the criminal report is not accurate or to show evidence of rehabilitation or other mitigating circumstances.
The employer must wait until the 5 business days are up before making a final decision. If within those 5 days, the candidate informs them in writing they are taking steps to obtain the evidence required, the employer must provide an additional 5 business days for a total of 10 business days from the initial notification. Once the evidence is provided and the employer decides not to proceed with hiring the candidate, they must notify the candidate in writing of the final decision and inform them of their right to file a complaint with the DFEH.
If the candidate does not respond within the timeframe allowed, the employer can now take steps to continue filling the position with another candidate.
Recent Updates by the DFEH
The recent updates which are effective October 1, 2020, expand the definition of applicant or candidate to include an employee who was allowed to begin work prior to their criminal record being received by the employer. The employer would need to follow the same process outlined above for an employee in this situation.
In addition, the updated regulations reinforce that the employer must follow any related laws such as any local Ban the Box laws as well as the Investigative Consumer Reporting Agencies Act (ICRAA) which is the California version of the federal Fair Credit Reporting Act (FCRA).
The update also clarifies that employers who are required by law to perform criminal background checks and to bar those with a criminal history from employment can perform criminal background checks prior to making a Contingent Job Offer, however, they must still follow the other requirements of the Fair Chance Act including the requirements listed above. This generally applies to employers whose employees work in healthcare with direct contact with patients or clients or in a pharmacy with access to controlled substances.
How Can SDHRC Help?
As more and more states are passing their own versions of Ban the Box laws, there has been renewed interest in these laws and how the requirements are being administered by employers. It can be complex with several chances for missteps by the employer.
Let our expert HR Consultants put your mind at ease by assisting you with your criminal background checking process including reviewing all related recruiting and hiring policies, procedures and documents to ensure you are meeting the requirements of this complicated law.
Author: Traci Hagan
