Handling Negative Results in Which the Employer Wishes to Rescind the Offer
So, what happens if an employer learns about a conviction history through a background check and wants to rescind the job offer?
First and foremost, employers with blanket criminal conviction employment denial policies absolutely need to revisit and revise their policies. In general, a good way to determine which crimes are likely safe to consider for rescinding an employment offer, is to ask "what crimes actually have actual or potential negative impact on the position in question" and "how will the crime have actual or potential negative impact on the position in question".
The Process
Pursuant to California Law, employers wishing to rescind a job offer based upon the results of a criminal background check are required to engage a battery of administrative steps, including:
- Individualized assessment: The employer must make an individualized assessment about the conviction history. That means that an employer has to consider the nature and gravity of the criminal history (the harm caused by the criminal conduct), the amount of time that has passed since the conviction, and the nature of the job sought (the essential functions and the job environment). The employer cannot simply say that they won’t hire anyone convicted of a certain crime.
- Notification in writing: The employer must notify the applicant in writing of the preliminary decision that their conviction history disqualifies you from employment.
- Notice of disqualifying conviction: The employer must provide a notice of the convictions that disqualify the applicant from employment.
- Copy of conviction history report: If the employer obtained a copy of a conviction history report, they must provide the applicant with a copy of the report.
- Chance to respond: The employer has to give the applicant at least five business days to respond to the preliminary decision to rescind the job offer (and has to tell the applicant they can respond). If the applicant disputes the conviction history report, and informs the employer within five days, then they get an additional five days to respond. The employer has to tell the applicant that their response can include any evidence challenging the accuracy of the conviction history report, plus any evidence of rehabilitation or circumstances that the applicant believes are important for the employer to consider about their life or the crime. Examples of this type of evidence include employment history, an explanation of circumstances about their involvement in the crime, and rehabilitation efforts such as education or training.
- Consideration of your response: The employer must consider any information submitted in response.
- Final notification in writing: After considering any information submitted, the employer must notify the applicant in writing of any final disqualification from the job, any procedure the employer has to challenge that final disqualification, and their right to file a complaint with the Department of Fair Housing and Employment.