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By Roy Schneider, Esq.

“You can never be too cautious.”

“An ounce of prevention is better than a pound of cure.”

These and other common sayings may make it seem like a smart business move to conduct criminal background checks of all job applicants and exclude any applicant who has ever been arrested for, or convicted of, any crime in the past. Why hire a person with a criminal record when, surely, there are applicants out there with unblemished records?

In reality, however, the issue of job applicant criminal background checks is a complicated one. It is not illegal to conduct a criminal background check, but employers must be careful about how they use the results of these background checks to exclude applicants. 

In some cases, it may be illegal discrimination for an employer to exclude an applicant because of the results of the background check. For example, in January 2012, the U.S. Equal Employment Opportunity Commission (EEOC) reached a settlement with Pepsi Beverages regarding this precise issue. Pepsi had a policy and practice of excluding job applicants who had arrest records but no convictions, as well as excluding applicants with convictions for minor crimes along with applicants convicted of more serious offenses.  The EEOC’s investigation determined that Pepsi’s policy unfairly excluded a higher number of African Americans from the job applicant pool. Pepsi reached a settlement with the EEOC – making financial payments to affected job applicants, offering jobs to qualified applicants who had previously been excluded, and changing its background check policy.

The EEOC’s guidance on criminal background checks for job applicants is as follows: Generally, any criterion used to screen job applicants must be relevant to the applicant’s ability to perform the job in question.

  • An arrest record is rarely, if ever, relevant because under American law, everyone is innocent until proven guilty.
  • Convictions for minor crimes may also be irrelevant and should not be considered. As an example, a conviction for underage drinking may not be relevant, unless the person is applying for a bartender job where he or she has the responsibility to check identification.
  • Convictions in the distant past are rarely, if ever, relevant to an applicant’s ability to perform a job unless the conviction relates to the job in question. For example, a conviction 20 years ago for writing one bad check may not be relevant to a job as a lifeguard. However, if the job is for a position in a bank, then the conviction may still be relevant to the applicant’s ability to perform that job honestly.

California law is in accord with the Guidelines promulgated by the EEOC. California employers should avoid a rule that automatically bars employment to any applicant who has a record of criminal conviction. As noted with the EEOC, this type of policy may violate state and federal law if the conviction is not job-related and the policy has a disparate impact upon a protected class. 

In addition, California employers may not ask job applicants to disclose information relating to a referral to or participation in a criminal diversion program. The employer cannot seek the same information from any other source, nor use it as a factor in decisions related to hiring, promoting, training or termination. Further, a California employer may not inquire about convictions for most marijuana possession offenses more than two years old.

Business owners and hiring managers are to be credited for wanting their workplaces to be safe and staffed by honest, trustworthy employees. It is important, however, for employers to make sure that it uses the results of job applicant background checks in a fair manner to prevent illegal discrimination. 

If you are conducting or are thinking about conducting job applicant criminal background checks and would like to know more about the legal ramifications and how best to protect your business, please call us for an appointment with one of our knowledgeable employment law attorneys.

Schneiders & Associates, L.L.P. is a multi-service law firm located in Oxnard, California with a focus in business related matters.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.