Criminal Background Checks

“I like to have criminal background checks run on applicants. Things have changed lately and now I’m not sure how to do it legally.”

Your HR Survival Tip

California made it more time-consuming to run background checks with the “ban the box” law that went into effect 1/1/2018. The actual process of requesting the background check is the same but everything surrounding it has changed. Below is a simplified version of the rules when including criminal history in the request:

• First, you must provide a written offer letter before conducting the background check. The letter needs to state the offer is contingent upon the results of the report.
• The candidate must sign an authorization form giving you permission to run the check.
• You must provide the candidate a copy of the report unless they have specifically waived that right in writing. The waiver is often a checkbox on the authorization form. However, if the report has information that makes you want to renege on the offer (aka adverse action), you must provide the report even if they waived.
• You cannot just blindly renege on your offer… what is on the report must relate to the position for which they were being hired, how much time has passed, and the nature and gravity of the offense or conduct. Also keep in mind that only convictions can count, not arrests.
• You must provide a written notice to the candidate intended to give them a fair chance because there can be mistakes on reports. The candidate must be given at least 5 days to respond to your notice. If the candidate disputes the report within those 5 days, you must give them another 5 days to respond.
• After the candidate has responded, you must go over all the information and then provide a written notice of your final decision. It’s best to put all factors resulting in your decision in writing for the file in case you need to provide the justification at a later date.

As mentioned, this is a very simple explanation of the process but there are many details not given here. If you conduct background checks that include criminal history, ensure your process and notices are compliant and ready to use.