James F. Mahoney, Attorney
Commentaries
 
     

February 2018

Criminal Background Checks in Hiring

When a potential employer is considering not hiring a job applicant based on information the employer learns from a criminal background check (among other types of background checks), the employer must follow the pre-adverse action protocol under the Fair Credit Reporting Act (FCRA).

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When a potential employer is considering not hiring a job applicant based on information the employer learns from a criminal background check (among other types of background checks), the employer must follow the pre-adverse action protocol under the Fair Credit Reporting Act (FCRA).

Under that protocol, the employer must provide the applicant with a copy of the background check and an FCRA summary of rights before making a final employment decision regarding the applicant. This gives the applicant the opportunity to review the background check and point out any errors he or she believes exist. Employers often deliver this information to applicants with a pre-adverse action letter, which typically informs the applicant about the possibility of adverse action. It is important to note that the FCRA does not require any specific content in the pre-adverse action letter. In fact, the FCRA does not require a letter at all.

For California employers, the California Government Code § 12952 changes that. Under this new code section, California employers (including out-of-state employers that employ California workers) must provide the applicant with specific written notifications regarding the potential adverse action. These notifications include the following:

  • notification that the employer has made a “preliminary decision that the applicant’s conviction history disqualifies the applicant from employment”;

  • notification of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer of employment;

  • a copy of the conviction history report, if any; and

  • an explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final, and notification of the deadline by which the applicant may respond.

Regarding the final bullet point above, the explanation must inform the applicant that his or her response may include the submission of (a) evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, (b) evidence of rehabilitation or mitigating circumstances, or (c) both.