Don’t Run Afoul of the Law When Conducting Criminal Background Checks

The laws in some West Coast cities have changed recently regarding how and when a potential employer may inquire about a job applicant or contractor’s criminal record. San Francisco and Seattle recently passed “ban the box” legislation, restricting an employer’s ability to ask about criminal records on applications and in job interviews. Whether or not employers do business in one these cities, it is important to know when and how an employer may conduct a background check.

To run a background check on an applicant, employers need an applicant’s informed and express written permission to do so. Often, this is enough for an applicant to withdraw his or her application if their history includes conviction of a serious offense. In the interview process, employers need to be very careful about what they discuss with applicants. Employers are barred from inquiring about arrests that did not lead to conviction, referrals or participation in a pre- or post-trial diversion program, and convictions that are sealed, expunged or otherwise eradicated. Nor can employers ask about juvenile records or certain minor marijuana offense more than two years old.

In San Francisco, employers are also barred from considering any criminal history disclosed by an applicant, regardless of whether the employer has conducted or intends to conduct a background check. The information comes into play only if it has “a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities of the job.” One example would be if the applicant has access to sensitive data or large amounts of money. Applicants must be told in writing if they are rejected due to their criminal record. While the Department of Fair Employment and Housing heavily regulates this practice, litigation is rare. But that doesn’t mean an employer should take their responsibilities in this area lightly.