Over the last few years we have seen “ban the box” laws enacted in various states and municipalities. In California, these laws limit the timing of an inquiry into a job applicant’s criminal history to after a conditional offer is made and limit how an employer may proceed when considering an applicant’s criminal history in hiring decisions. With laws that vary in terms, it can be difficult for an employer to know how to navigate the hiring landscape with respect to the use of an employee’s criminal history. One question that frequently occurs is whether an employer may consider misdemeanor convictions in hiring decisions.

In fact, misdemeanor convictions, with some exceptions, may be considered by employers in their hiring decisions. The limitations placed by various local and state laws with respect to consideration of a misdemeanor conviction in hiring decisions are as follows:

California Ban the Box Law, Government Code § 12952: This law applies to employers with five (5) or more employees. The law does not distinguish between felonies and misdemeanors, and provides that a conviction includes a plea, verdict, or finding of guilt, regardless of whether a sentence is imposed by the court. An employer may not consider an arrest not followed by a conviction, except in certain limited circumstances, nor may employers consider convictions that have been sealed, dismissed, expunged, or statutorily eradicated. However, as provided by Labor Code Section 432.7(a)(1), an employer may ask an employee or applicant about an arrest for which the employee applicant is out on bail or on his or her own recognizance pending trial. There are certain other exceptions for employers at health facilities.

City of Los Angeles Fair Chance Initiative, Municipal Code, Article 9, Chapter XVIII: This law governs employers located or doing business within the City of Los Angeles who employ at least ten (10) persons, including owners and management. Employers may consider a misdemeanor conviction, provided the conviction resulted in the person being placed on probation, fined, imprisoned or paroled. The regulations further provide that a conviction includes a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court.

State Fair Employment and Housing Council Regulations, Code of Regulations, Title 2, § 11017.1: Employers may not consider a non-felony two (2) or more year-old conviction for marijuana possession; an arrest not resulting in a conviction; participation in a diversion program; a judicially dismissed, sealed or expunged, or statutorily eradicated conviction; or an arrest when subject to juvenile court law.

Requirements Before Adverse Action May be Taken: If the criminal history will be a factor in the employment decision, Government Code section 12952 requires that the employer assess whether the individual applicant’s criminal history has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” This assessment must consider the nature and gravity of the criminal offense, the time that has passed since the offense and the completion of the sentence, and the nature of the job sought. If the employer makes a preliminary decision that the conviction will disqualify the applicant from employment, the employer must notify the applicant of the preliminary decision in writing and provide a copy of the conviction report. The employer should (but is not required to) explain the reasons for the decision. The employer must also inform the applicant of his or her right to respond to the notice before the decision becomes final and inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both. The employer must provide a deadline for the response of at least five (5) days, with an additional five (5) days to be provided if the applicant notifies the employer that he or she disputes the accuracy of the report and is taking steps to obtain evidence to support his or her assertions.

An employer must consider any response provided by an applicant before making any final determination. If the employer makes a final decision to deny employment, the applicant must again be notified in writing of the final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final decision. The employer must also provide the applicant information regarding any procedure the employer has for the applicant to challenge the decision or request reconsideration. The applicant must also be informed of his or her right to file a complaint with the Department of Fair Employment and Housing.

Employers should be aware that the Government Code section 12952 and the City of Los Angeles’ Fair Chance Initiative require similar assessment, notice, and right to respond obligations if the employer chooses to withdraw a conditional offer of employment to an applicant based on his or her criminal history. As the precise steps vary depending on the law, employers should consult with employment counsel before proceeding with an adverse action against a job applicant. Employers should also make sure there are no new or other local law restrictions.

The author would like to gratefully acknowledge the assistance of Joanne Warriner.