California Background Check & Pre-Employment Laws​

What are California background check and ban-the-box laws?

Per Cal. Labor Code 222.5, the applicant cannot be required to pay for employment drug screenings, their own background checks in California, or medical examination expenses. The law states that California employers cannot coerce or compel an employee or applicant to purchase anything of value, especially in terms of submitting job applications.

Per Cal. Labor Code 432.7, employers, whether public or private, cannot ask applicants about criminal charges that did not end up with a conviction, their participation in pre- or post-trial diversion programs, convictions that were either sealed or dismissed, or cases where there was a Deferred Sentence or Adjudication Withheld, nor can any of these be used in hiring decisions.

An employer may not consider convictions that are more than two years old involving 28.5 grams (one ounce) of marijuana. Employers may, however, ask a job applicant about any pending criminal charges.

California Law AB 1008 applies to all employers with more than five employees, but does not supersede the local laws in Los Angeles, San Francisco or any other CA municipality. The law prohibits an employer from denying employment to an applicant solely, or in part, based on their conviction history.

This is until the employer conducts an Individualized Assessment of the applicant relative to the nature and seriousness of their crime, how long ago the crime occurred, and the nature of the job they are applying for, as it might relate to the crime they committed, which mimics EEOC standards. The result of the Individualized Assessment does not have to be provided to the applicant in writing.

In California, the Consumer Authorization Form Must Include the Following:

• That an investigative report may be obtained.
• The permissible purpose of the report.
• That the report may contain information on the consumer’s character, general reputation, personal characteristics and mode of living.
• The name, address and telephone number of the CRA who issued the report.
• Notice of rights under §1786.22 (usually known as the California Notice of Rights in English and Spanish).

Additionally, State or local public employers are prohibited from asking applicants about their conviction history until it has been determined that the applicant meets the advertised minimum qualifications for the position. Employers are also prohibited from requesting information on an applicant’s juvenile records. Sex offender information can only be considered if the employer has people in an “at risk” category.

Los Angeles, San Francisco and other California municipalities have enacted their own versions of California ban-the-box laws. Los Angeles employers with more than 10 employees cannot investigate an applicant’s California criminal history until after a conditional employment offer has been made, based on an Individual Assessment of the applicant’s criminal history relative to the duties and responsibilities of the job in question. In addition, the particular disqualifying criminal record must be noted on the adverse action notice.

San Francisco-city and county of San Francisco

Per ordinance an Employer may not require applicants or potential applicants for employment or employees to disclose, and shall not inquire into, the person’s conviction history or an unresolved arrest until either after the first live interview with the person (via telephone, video-conferencing, use of other technology, or in person) or after a conditional offer of employment.

New regulations issued on July 1, 2017 by the California Department of Fair Housing seek to eliminate unintentional discrimination arising from adverse actions that relate to hiring criteria, such as education, that can exclude entire classes of applicants. All hiring criteria must be justified as job related and a requirement for successful job performance, not just the employer’s preference, and opportunities must be provided for the job applicant to prove that they meet the hiring criteria by an alternative means.

Cal. Labor Code Section 432.3 prohibits employers from asking applicants about their salary history, or having a CRA report on it, when making the decision to hire or deciding upon the salary to offer. Please note, this prohibition applies throughout the onboarding process, from pre-employment application and interview, to the post-offer and post-employment stages.

An applicant’s consumer credit report information can only be used for employment purposes if the position is one of the “exception” positions where a certain level of credit-worthiness may be necessary. The applicant will be informed, on the disclosure/consent form, that the credit report is being requested and the specific position(s) to which it will be applied by the employer in making a hiring decision.

Regarding the use of social media in background checks, with limited exceptions, employers cannot request or require employees or applicants to disclose their username or password so that the employer can access their social media account(s), nor can the employer require the employee or applicant to access their social media accounts in the presence of the employer, and employees or applicants are not required to divulge any social media personal information.

San Francisco-city and county of San Francisco: Per ordinance an Employer may not require applicants or potential applicants for employment or employees to disclose, and shall not inquire into, the person’s conviction history or an unresolved arrest until either after the first live interview with the person (via telephone, video-conferencing, use of other technology, or in person) or after a conditional offer of employment.

Click here to read the full statute.

Cities Include: Los Angeles, San Diego, San Jose, San Francisco, Fresno, Sacramento, Long Beach, Oakland, Bakersfield, Anaheim and more.

Note: This information is not intended to be legal advice. Please consult with your own legal counsel and HR professionals for advice related to your state/locality, California labor codes, California Department of Justice or with the State of California about employment screening.