August 12, 2021

Best Practices: Revoking A Conditional Offer of Employment

California’s Fair Chance Act (FCA) limits an employer’s use of an applicant’s or employee’s criminal conviction history in the following ways:

  • Including questions about an individual’s conviction history before a conditional offer of employment has been made.
  • Inquiring, considering, or discriminating information about an applicant’s or employee’s criminal conviction history before a conditional offer of employment has been made.
  • Considering information about arrests not followed by a conviction, underlying pending charges or convictions dismissed, sealed, eradicated, or expunged; or an individual’s participation in a diversion program.

Employers in California with five or more employees are prohibited from conducting any criminal background history check until after a conditional offer of employment has been made. Once made, the employer must conduct an individualized assessment before making any decisions regarding revocation of the conditional offer.

Revoking a Conditional Offer of Employment
California employers subject to the FCA may not revoke a conditional offer of employment based on information discovered within an individual’s criminal conviction history without conducting an individualized assessment.

The assessment must consider the following factors:

  • The nature and gravity of the conviction.
  • How much time has passed since the offense or conduct and completion of the sentence.[i]
  • The nature of the job held or sought.

An employer may, but is not required to, put the results of its assessment in writing. Employers should seek legal counsel before creating a written record of the results of its assessment.

If the employer’s decision is to withdraw the conditional offer of employment based solely on a conviction(s) discovered in the criminal background history, it must provide the applicant or employee advance written notice and an opportunity to respond.

A preliminary notice of intent to withdraw the conditional offer of employment must include all of the following:

  • Notice of the disqualifying conviction(s)
  • A copy of the conviction history report (if any)
  • Notice of the right to respond (in writing) within 5 business days including:
    • Notice of opportunity to provide evidence:
      • Challenging accuracy of the conviction history report
      • Rehabilitation and/or mitigating circumstances

Employers are prohibited from making any final decisions during the initial 5-day time period. A notice of intent to challenge, received in writing, grants the applicant/employee an additional five business days with which to respond. Rebuttal evidence once submitted must be considered before the employer makes a final decision.

A final decision to disqualify an applicant based solely or in part on the applicant’s conviction history must be communicated in writing to the applicant and must include all of the following:

  • Notice of the denial or disqualification decision.
  • Existing procedure(s), if any, for challenging the decision or to request reconsideration.
  • Notice of the right to file a complaint with the Department of Fair Employment and Housing

The employer’s final decision may, but is not required to, justify, or explain its reasoning behind making the final decision to deny or disqualify.

Some exceptions do apply. FCA provisions do not apply to an applicant for a position:

  • With a state or local agency that requires it by law.
  • With a criminal justice agency.
  • As a farm labor contractor.
  • Where the employer is required by federal, state, or local law or regulation to:
    • Conduct criminal background checks; or
    • Restrict employment based on criminal history.

Tips, Insights and Best Practices:Employers should consider the following regarding Ban-the-Box compliance:

  • Training for all personnel involved in the hiring process.
  • Conducting the individualized assessment does not prevent an employer from having validly established pre-job qualifications.
  • Consider allowing additional time beyond the requisite 5 or 10-day response periods for the applicant or employee to provide rebutting evidence. However, policies and procedures for giving applicants more time to provide evidence should be the same for all applicants or employees.
  • Consider performing a self-audit to evaluate in advance what types of convictions would prohibit an employee from performing a specific job (e.g., a conviction for financial fraud or embezzlement would prohibit an applicant or employee from performing job duties involving the handing of cash or company bank accounts.) Considering this issue in advance can lessen an individual’s chances of proving allegations of discriminatory conduct. In other words, making these decisions in advance prevents making case-by-case determinations for obvious types of convictions; evidencing prior consideration as opposed to consideration based on an individual’s alleged protected classification.

Many California and Arizona municipalities have enacted their own Fair Chance ordinances. These local laws may add additional burdens to employers in these locals. Employers should consult local laws or legal counsel to determine if local laws apply.

[i] There is a rebuttable presumption that if a conviction used to revoke a conditional offer of employment is more than 7 years old, the employer has failed to conduct a meaningful individualized assessment.