What are the rules an employer must follow before conducting a background check on a job applicant in California?

In California, an employer must make a conditional job offer to an applicant before inquiring about their criminal history or conducting a background check. The process is strictly regulated to ensure fairness and provide applicants with an opportunity to respond. Here are the steps an employer must follow: Step 1: Make a Conditional Offer of Employment You cannot ask about criminal history on a job application or in an interview. You must first evaluate the applicant's qualifications and make them a formal, conditional offer of employment. This offer can be made contingent on the applicant passing a background check. Step 2: Provide Disclosures and Obtain Written Consent Before running the check, you must provide the applicant with clear, written notice. This disclosure must be a standalone document stating that you intend to obtain a background report for employment purposes. You must also give them a copy of their rights under state and federal law. After providing these documents, you must obtain the applicant's written authorization to conduct the check. Step 3: Conduct the Lawful Background Check You may now order the background check from a third-party reporting agency. Under California law, the report cannot include certain information, such as arrests that did not lead to a conviction (with limited exceptions), convictions that have been sealed or expunged, or non-felony marijuana convictions older than two years. Step 4: Follow the Required "Adverse Action" Process If the background check reveals information that makes you consider withdrawing the job offer, you cannot do so immediately. First, you must perform an individualized assessment to weigh the conviction's nature and gravity against the duties of the job. Then, you must send the applicant a "pre-adverse action notice" that includes a copy of the report and a notification of your preliminary decision. You must give the applicant at least five business days to respond and dispute the report's accuracy or provide evidence of rehabilitation. Only after considering their response can you make a final decision. Important details and nuances: These rules generally apply to employers with five or more employees. The term "background check" covers both criminal history checks and investigative consumer reports, which may include information on a person's character or reputation gathered through interviews. Warnings and limitations: Failure to follow these steps precisely can lead to significant legal liability, including lawsuits from applicants. Certain positions, such as those in law enforcement or roles that require a background check by federal or state law, may have different requirements or exemptions. This is general information and does not constitute legal advice. For complex situations, consult with a qualified California attorney.