CA Employers: It is a good idea to review your background check process in hiring new employees after recent appellate court ruling

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September 24, 2021

Employers, what is your typical procedure for conducting background checks during the new employee hiring process? If it involves looking up a potential candidate in a court database using their driver’s license or date of birth, this will no longer be an option after a recent California appellate court ruled in All of Us or None v. Hamrick that this practice violates the California Rules of Court regarding public availability of electronic records of courts.  The Hamrick court’s ruling affects employer background checks going forward because inputting a candidate’s name alone into a database could lead to incorrect results.  This less reliable background check could potentially reveal the criminal history of someone completely unrelated to the hiring candidate.

Now might be a good time to review California law on background checks and to make sure that your business has a sound process in place when reviewing applicant histories.

Here is the lowdown:

Application/interview period: The Fair Chance Act, also known as a “Ban the Box” law, which went into effect on January 1, 2018, is a California law that generally prohibits employers of more than 5 employees from asking about one’s conviction history before making a job offer.
 
Conditional offer of employment period: After a conditional offer of employment, employers may ask about the potential employee’s criminal history, but with the following restrictions:

• Before denying an applicant the job due to a prior conviction, employers must perform an individualized assessment to determine whether the conviction has a direct or adverse relationship with the duties of the job.  An employer cannot take back the job offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job the applicant is seeking.
• If, after the assessment, the decision is made not to hire, the employer must provide the applicant written notice of the decision not to hire along with an explanation
• The employer must then allow the applicant the ability to respond
• After review of the response, if the employer still refuses to extend an offer, the employer must provide another written notice informing the applicant of the final decision

This lengthy process, although tedious, has become more meaningful post-Hamrick where simple name searches could prove unreliable.  If you need assistance reviewing your company’s new hire process, let McKague Rosasco LLP help you come up with a plan.