Q:  I am confused about the laws relating to criminal background checks and what you can ask on a job application. What are the limits?


A:  A recent movement, referred to as “ban the box,” seeks to remove questions regarding criminal history from job applications. This is because recent statistics reveal that nearly 65 million Americans – one in four adults – have a criminal record that could be uncovered by a background check.
Proponents of background check reforms are concerned that otherwise qualified candidates may be evaluated based on outdated and unrelated convictions rather than on their abilities. Background checks can also unlawfully exclude protected groups of applicants from obtaining employment.
For example, a recent lawsuit against the American Idol television show alleges that a group of black males were discriminated against when they were disqualified from being contestants on the show due to their arrest history. The lawsuit argues that American Idol producers engaged in a pattern of racial discrimination by using black male contestants’ arrest history against them. The suit contends that 31% of all American Idol contestant semi-finalists who were black males were disqualified for reasons “unrelated to their singing talent.” Moreover, the lawsuit alleges that over the course of 10 years, “there has never been a single white (or non-black) contestant disqualified from American Idol.”
American Idol denies discrimination, and alleges that the contestants are not employees and are therefore not entitled to the protections afforded by Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act. However, this case illustrates how a facially neutral background check policy can have a disparate impact on a protected group, leading to a risk of discrimination.
In California, employers cannot ask an applicant about previous arrests that did not result in a conviction. Employers can ask if an applicant has been convicted of a crime, excluding certain misdemeanors. The application should state that a conviction will not automatically disqualify an applicant from a job. A decision not to hire an applicant must be based on the applicant’s qualifications and the employer’s business needs.
Two new laws regulate permissible applicant inquiries in California. Senate Bill 530 prohibits an employer from asking an applicant to disclose convictions that have been dismissed or ordered sealed, and prohibits an employer from using such convictions as a factor in determining any condition of employment. Limited exceptions to this law permit employers to ask about these convictions if required by law or if the job requires use or possession of a firearm.
Assembly Bill 218 applies only to public employers, and prohibits asking an applicant to disclose information regarding a criminal conviction until after the agency has determined that the applicant meets the minimum employment qualifications for the position. These restrictions do not apply to jobs with a criminal justice agency or if a conviction history background check is required by law. AB 218 does not prevent a state or local agency from conducting a conviction history background check after determining the applicant meets minimum qualifications.
A third law, Assembly Bill 389 applies to private schools. It requires private elementary and high schools to fingerprint each applicant for employment in a position requiring contact with minor students, even if an applicant has already gone through a criminal background check as part of the state’s teacher credentialing or licensing process.
Employers should assess whether their job applications, including questions about prior criminal records, comply with state and local laws where the employer operates and hires.