May June 2018

12 CALIFORNIA LODGING NEWS www.calodging.com This article discusses the legal issues innkeepers face when dealing with criminal background checks. 1. New Law Effective January 1, 2018 a. Effective January 1, 2018, amended the Fair Employment and Housing Act (FEHA) to implement a statewide “ban- the-box” law that prohibits employers with five or more employees from inquiring about or considering the criminal history of job applicants until a conditional offer of employment has been made. Also, an employer may not include questions on an employment application form, or otherwise inquire into or consider criminal conviction history, before the employer makes a conditional offer of employment to the applicant. Once an employer makes a conditional offer, it may require the candidate to disclose criminal conviction information. b. If on reviewing that information an employer decides to rescind the offer, it must notify the applicant in writing of that preliminary decision, the conviction(s) upon which that decision is based, and the applicant’s right to respond within five business days, along with a copy of any conviction history report. If within that time the applicant notifies the employer in writing that he/ she disputes the conviction history, he/ she may have an additional five days to obtain evidence before fully responding. The employer must consider any information an applicant submits before making its final decision. Should the denial of employment stand, the employer must notify the applicant in writing of: (1) its final decision; (2) any procedure the employer has for the applicant to dispute the decision; and (3) the applicant’s right to file a complaint with the Department of Fair Employment and Housing. c. The new law prohibits an employer from considering most arrests that were not followed by a conviction, referral to a diversion program, and sealed, dismissed, or expunged convictions. 2. Certain Criminal Information is Off Limits As with hiring, certain types of criminal information can never be sought or used as a factor in determining any condition of employment, including decisions related to promotion, training, discipline, layoff and termination. Note that California’s law limits the use of criminal history information in any kind of employment decision, not just hiring, and apply to all California employers (not just those with five or more employees). For example, when making decisions about any condition of employment, you cannot seek or use information about: • Arrests or detentions not resulting in conviction (except when the employee is out on bail or out on his/her own recognizance pending trial). • Information concerning a referral to or participation in a pre-trial or post-trial criminal diversion program. • Convictions for most marijuana possession offenses more than two years old. • Convictions that have been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law. • Juvenile criminal history information. 3. Before Conducting a Background Check Whether you’re using an “investigative consumer reporting agency” to conduct a check or doing a public records search yourself, some paperwork is necessary. If you’re using an investigative consumer reporting agency: • Tell the applicant in writing that you intend to obtain an investigative consumer report and obtain the Do’s and Don’ts of Criminal Background Checks By Jim Abrams, CH&LA’s Member Legal Advisor The California Hotel & Lodging Association recently received the following question from one of its members: We have made a job offer to a candidate that is contingent on satisfying the hotel’s pre-employment requirements. The employee has signed all required authorizations for his background check. I have reviewed the background check and I have some questions and concerns. I would typically just call and ask for an explanation. Can I still do this? What do I have to do now to ensure we are in compliance with the law? Our company has a practice to consider employees with records as long as there has been resolution and offences were non-violent.