©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 63 4.2 Questions about Certain Arrests and Convictions 4.2.1 State law California, unlike federal law, regulates various forms of employer inquiries about the arrests and convictions of applicants and employees.6 Questions about arrests. California employers generally must not ask applicants, employees, or any other source about the arrest of an applicant or employee that did not lead to a conviction.7 Questions about certain convictions or diversion programs. California employers must not ask about an applicant’s or employee’s referral to, and participation in, any pretrial or post-trial diversion program,8 and must not ask employees about judicially dismissed, sealed, or expunged criminal convictions.9 California employers cannot ask applicants about certain marijuana-related convictions more than two years old.10 Plaintiffs’ lawyers exploited this provision to seek $26 million for 135,000 unsuccessful applicants who had unlawfully been asked if they had marijuana convictions. The trial court granted summary judgment to the plaintiffs, even though none of them actually had marijuana convictions to reveal. The Court of Appeal provided some adult supervision here, reversing the judgment while observing, “Plaintiffs’ strained efforts to use the marijuana reform legislation to recover millions of dollars from Starbucks gives a bizarre new dimension to the everyday expressions ‘Coffee Joint’ and ‘Coffee Pot.’”11 A 2020 Court of Appeal decision reinstated a lawsuit alleging that an employee was fired because she had not disclosed on her job application a conviction for grand theft that had been judicially dismissed once she completed her probation. Although the employer did not know that the conviction had been judicially dismissed when it fired the employee, the employer did not rehire the employee once it learned of the judicial dismissal.12 Asking applicants about convictions. California’s “ban the box” statute forbids private and public employers from asking about convictions on initial job applications.13 This rule applies even if applicants volunteer such information.14 Furthermore, California employers cannot state in job advertisements, postings, applications, or other materials that individuals with a criminal history will not be considered for hire.15 About 30 states have similar legislation, in addition to 15 California cities and counties—including Los Angeles and San Francisco—that have enacted local legislation applying to private and public employers. California employers subject to the law generally may procure a background report or ask applicants about criminal convictions only after extending them a conditional offer of employment.16 And California employers can rely on conviction history to deny employment only after making “an individualized assessment” of whether the conviction “has a direct and adverse relationship” with the job’s “specific duties … that justif[ies] denying the applicant the position.” That assessment must consider the nature and gravity of the offense, the time that has passed since completion of any sentence, and the nature of the job.17 An employer intending to deny employment after an individualized assessment must notify the applicant of its “preliminary decision” and provide a copy of the conviction history report, with notice of the applicant’s right to respond before the decision becomes final. The applicant has at least five business days to submit relevant evidence challenging the accuracy of the conviction history and/or evidence of rehabilitation or mitigating circumstances or both.18 Relevant evidence was broadened by 2023 regulatory amendments to include an applicant’s past employment, details and context of any offenses, self-improvement efforts, impact of personal challenges like trauma or disability on the offense, age at offense time, re-offense risk, bonding status, jobseeking initiative, and compliance with legal probation or parole.19 And an employer finalizing its preliminary
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