Fresno, CA asked in Employment Discrimination and Employment Law for California

Q: Can an employer fire you after you worked for them because of something on your record?

I worked with a company for a few months and they then let me go because of information on my background check the didn’t like or said they couldn’t allow people with this on there background to work for there company. The information stated I was supposed to be in a drug program but I never tested positive for drugs and never was eligible for a drug program I’m a single mother of two any advice is this even legal??

1 Lawyer Answer
Neil Pedersen
Neil Pedersen
Answered
  • Employment Law Lawyer
  • Irvine, CA
  • Licensed in California

A: An employer is allowed to take an adverse action against an employee who has outstanding pending charges, i.e., the matter has not yet completely resolved in the courts. An employer is not allowed to consider any charges that were dismissed pursuant to a particular Penal Code section or any arrest that has finally resolved that did not lead to a conviction.

Beyond those clear exceptions, more would need to be known about your situation to see if this employer is making an unlawful end run around the relatively new Ban the Box legislation by terminating you.

On January 1, 2018 the California "Ban the Box" law went into effect. Under that law, it is unlawful for employers with at least five employees to (1) include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, (2) ask about or consider the conviction history of an applicant before the applicant receives a conditional offer of employment, and (3) consider, distribute, or disseminate information about any of the following while conducting a criminal history background check in connection with any application for employment: (a) an arrest that did not result in a conviction, subject to limited exceptions, (b) referral to or participation in a pretrial or posttrial diversion program; and (c) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

Consideration of the applicant’s criminal history will be permitted only after the employer has made a conditional offer of employment. Once that offer has been made the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment. This assessment must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position sought. In particular, the assessment would have to consider (1) the nature and gravity of the offense and conduct, (2) the time that has passed since the offense or conduct and completion of the sentence, and (3) the nature of the job held or sought.

Once the employer makes a preliminary decision that the applicant’s conviction history is disqualifying, the employer must notify the applicant of this preliminary decision in writing. This written notice must (1) provide the written notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer, (2) include a copy of the conviction history report, if any, and (3) provide an explanation that the applicant has the right to respond to the notice within at least five business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both.

The employer cannot make any final determination based on conviction history during this five business day period. If the applicant timely notifies the employer in writing that they are disputing the conviction history and is taking steps to obtain evidence to support this, the employer must provide five additional business days to respond to the notice. The employer must also consider any additional evidence or documents the applicant provides in response to the notice before making a final decision.

If the employer decides to deny an applicant based on the conviction history, the employer must notify the applicant of this in writing, and include a notification of any existing procedure the employer has to challenge the decision, as well as notification of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.

it would be prudent for you to consult confidentially with an employment law attorney who is familiar with the law to see if your facts fall into the protections of this law. Good luck to you.

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