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Did an Employer Ask About Criminal Convictions Before Offering You a Job? If So, He Broke the Law

Michael F. Cardoza, Esq.
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U.S. Marine & Consumer Financial Protection Attorney dedicated to fighting debt and credit bureau harassment.
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Criminal Background Check Fingerprint and Paper Cardoza Law CorporationIt’s tough to get a fair shake in this world after you have been convicted of a crime, but California has laws to give you a fighting chance at getting the job you need to turn your life around. The California Fair Chance Act, better known as the Ban the Box law, prohibits employers from asking applicants about their criminal history until and unless they are ready to make a job offer. The intent of the law is to force employers to consider you based on your qualifications rather than on a past mistake. However, unless you know about this law, it’s easy to allow employers to break it.

What Ban the Box Does

You’ve probably seen the question on job applications since you were 16: “Have you ever been convicted of a felony?” accompanied by a box to check Yes or No. People who had to check Yes could pretty well assume that would be the end of this job opportunity. Most employers tossed those applications without even looking at past experience or even contacting references. Now in California, employers can’t ask the question until they make you a conditional offer of employment. They are also barred from running a criminal background check until they have offered you the job. If they do, they have broken the law.

What an Employer Must Do if They Decide Not to Hire You

Once an employer makes a conditional offer, they can then ask you about previous convictions and run a criminal background check. However, they cannot ask about arrests that did not lead to a conviction, juvenile records, sealed records, and certain marijuana offenses. The employer is required by law to consider several factors, including how long ago the conviction happened and whether the nature of the crime will affect your ability to do this particular job. If the employer decides to rescind your offer of employment after carefully considering these factors, he will have to supply you with a written notice specifying what his decision was based on and provide you with a copy of the record he obtained. You will then have five days to dispute the accuracy of the report or to supply evidence that you have completed a drug treatment program or made amends in some way for the crime. Once the employer has reached a final decision, he must notify you in writing, specifying the procedure you must follow if you want to challenge the decision and explaining your right to file a complaint with the California Department of Fair Employment & Housing (DFEH).

So What Can You Do About it?

You knew it would be tough starting over after a criminal conviction, but you should be able to expect that employers are obeying the law in the way they handle your application. If your rights have been violated—either on the initial application or in the way the employer followed up with you—you may have a claim for damages. As a California consumer attorney, I am greatly concerned about employer misuse of background checks, and I want to hear your story. Please contact me online or call my office directly at 855.982.2400.

 

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