California employers can conduct background checks on employees and job applicants, but there are laws that regulate when and how to do so. The law states that employers cannot investigate an applicant's criminal history until they have issued a conditional offer of employment. In addition, employers must conduct an individual evaluation of the applicant's criminal history in relation to the responsibilities and obligations of the vacant position. Applicants have separate rights under the federal background check law.
Employers must provide notice prior to taking adverse action to inform candidates of a specific crime or crimes that could lead to an adverse hiring decision. The notice must include information about any procedures the employer has in place for the applicant to challenge the decision and the right to challenge it by filing a complaint with the California Department of Civil Rights. California law is very broad with regard to the type of evidence an applicant can submit in response to an employer's notification. Employers must keep the position vacant for five business days so that the candidate has time to respond to the notice prior to adverse action. It is up to the applicant to decide whether to submit evidence in response to the employer's notification; such evidence must be submitted voluntarily. The final adverse action letter must notify the applicant of any way in which the applicant can challenge the employer's decision within the company, and the right to file a complaint with the Department of Fair Employment and Housing.
Employers who rely on criminal background checks to investigate candidates know full well that they must comply with a legion of laws, ordinances and regulations. The purpose of this law is to encourage employers to evaluate each applicant for a job, instead of categorically denying employment to people with a criminal record. With limited exceptions, employers have no legal obligation to verify the criminal background of applicants or current employees. Most background checks are usually completed within a few days, but the type of background check, the information needed, the source of that information, and whether you search the records yourself or use a background check provider influence the length of the background check in California. In light of these imminent changes in California, employers that use criminal records to investigate candidates should consider an insider review of all the various policies, procedures, and other documents related to the selection process.
