Employers Cannot Ask About Criminal Backgrounds or Salary History | FFS Insights

by Tal K. Taylor

Recently, new legislation went into effect in California making it unlawful for employers to ask job applicants to disclose their criminal conviction history until after they are given a conditional offer of employment.  With limited exception, this prohibition applies to all employers with five or more employees.

Employers are now prohibited from asking about a candidate’s criminal conviction history in a job application.  Employers are also precluded from inquiring about or even considering an applicant’s conviction history before a conditional job offer is first extended.

Once a conditional job offer is made, there are further limits as to what information an employer may consider in deciding whether to disqualify an applicant.  For instance, it is unlawful for an employer to consider an arrest that did not result in a conviction or a conviction that was dismissed or expunged.

Once the employer learns of an applicant’s criminal history, the employer is obligated to conduct an individualized assessment that factors in (1) the nature and gravity of the criminal offense, (2) the nature of the job duties, and (3) and the amount of time that has transpired since the offense.  If the employer decides to rescind the conditional job offer based upon the applicant’s criminal history, certain procedural steps must be taken before disqualification can occur.  This includes providing the candidate with written notice of the disqualification and affording the candidate an opportunity to challenge the decision, such as by submitting evidence of rehabilitation or mitigating circumstances.

Additionally, all California employers are now prohibited from asking job applicants about their salary history.  Moreover, it is unlawful for an employer to consider a candidate’s salary history in deciding whether to extend a job offer or what salary to offer.

Employers should ensure that their written employment applications do not inquire about candidates’ criminal or salary history.  Supervisors should be trained to refrain from probing into these subjects during the selection process.

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This alert is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this alert does not create any attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney.