Beginning January 1, California employers with five or more employees will be prohibited from asking about an applicant’s conviction history and cannot consider an applicant’s criminal history until after a conditional job offer has been made. A conditional job offer is an offer made contingent on the completion of a background check. Only after the conditional job offer is made, can an employer inquire about conviction history.
This all holds true for cannabis businesses as well. Do not ask a potential employee about criminal history until after the conditional job offer has been made.
If criminal history turns up after the conditional job offer is made, the employer can rescind the job offer, but only after performing an individualized assessment. An individualized assessment requires the employer to consider:
- the nature and gravity of the offense and conduct;
- the time that has passed since the offense or conduct and completion of the sentence; and
- the nature of the job held or sought.
If, after individualized assessment the employer decides the conviction history disqualifies the applicant from the position, the employer must provide written notice of its preliminary decision to withdraw the job offer.
And what is required in the “preliminary notice,” you may ask? That notice must name the disqualifying conviction or convictions, contain a copy of a conviction history report (if any), and notify the applicant that he or she has five business days to respond to the preliminary decision with evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances. If the applicant informs the employer within five business days of an intent to respond, the employer must provide five additional business days before making a final decision. It’s quite the process.
Ultimately, if the employer decides to disqualify the applicant based on the conviction history, the employer must also notify the applicant of the final decision in writing and notify the applicant of his or her right to file a complaint with the Department of Fair Employment and Housing. Presumably, the landing page for that will be here.
The big takeaway here is that before you begin hiring for your California marijuana business, it is important to review your job applications and ensure they do not contain any questions regarding criminal history. If you plan to conduct job interviews, review your standard questions to root out any items about criminal history there as well. And then follow the job offer process to a tee.