Beverly Hills, CA -- (SBWIRE) -- 05/09/2019 -- Many job applicants often want to know whether their prospective employer can run a background check on them. More specifically they want to know whether the background check is for criminal convictions or serious credit problems, such as bankruptcy. In the state of California, it is illegal under federal background check law to run a background check on job applicants. In some cases, it may seem unfair to the employer to be unable to find out the background of the potential employee they will be hiring.
One article states with regards to the basis of California employment discrimination laws, "Federal and California employment laws prohibit most employers from discriminating against applicants based on certain characteristics, such as race and ethnicity. Because arrest and incarceration rates are disproportionately higher for African-Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination." Based on the above, the application of background check laws is a way to curb a form of discrimination when it comes to employment. In fact, in order to ensure that employers know how to avoid discrimination when considering applicants' criminal records the California Fair Employment and Housing Council has issued guidance that employers can follow. Where an employer's practice of considering criminal history impacts negatively on a protected class such must be job-related and consistent with business necessity. This means that the employer's policy must actually consider whether the criminal history makes the applicant unfit for the position or poses an unacceptable level of risk to the business itself.
Certain types of criminal records are off limits for employers, and as a result, the employer is unable to ask about or consider such records at any time during the hiring or employment process. One attorney stated, "An employer at no point will ask or conduct background checks with regard to arrest records that did not lead to convictions, however, the employer may inquire of arrests that did lead to conviction and arrests that are awaiting trial. Employers may not ask about an applicant's referral to full participation in a pre-trial or post-trial diversion program. Sealed records may not be inquired about whether they are expunged or statutorily eradicated. Marijuana offenses that have non-felony convictions that are more than two years old are off limits. As well as any juvenile records relating to arrests, detention, processing or adjudication. This is because California does not consider juvenile court decisions to the convictions that employers could otherwise inquire about."
There are basic rules that govern background checks. If an employer wants to order a criminal background check from a third-party, it is necessary to comply with the federal Fair Credit Reporting Act (FCRA). This Act requires employers to get the applicant written consent beforehand and provide certain notices if the employer decides not to hire the applicant based on the contents of the report. The State of California has a law in place that excludes arrest and conviction records that are more than seven years old from a background check report.
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