Human Resources Academy II for Community College Districts

Gov. Code section 12952 prohibits employers from making inquiries regarding applicants’ prior criminal convictions prior to a conditional offer of employment being made. However, section 12952 also excludes state or local agencies that are required by law to conduct a conviction history or background check of applicants for a particular position. 3 Community college districts must conduct criminal conviction checks in order to determine if the academic or classified applicant has been convicted of one of the Education Code enumerated sex or drug offenses. Given this, we believe that it is permissible for community college districts to make inquiries regarding convictions to academic or classified applicants prior to making a conditional offer of employment because the Education Code specifically requires it. We recommend, though, that those early inquiries are limited to whether the applicant has been convicted of one of the Education Code enumerate sex or drug offenses. Once the applicant qualifies through the pre-screen process, a community college district can inquire about felony convictions that are outside of the ones enumerated in the Education Code. However, the District needs to be careful and thorough when doing so. The EEOC has provided guidance regarding the consideration of criminal offenses for job applicants. Generally, employers are to apply the factors set forth in Green v. Missouri Pac. R. Co. (8th Cir. 1977) 549 F.2d 1158, 1159. The Green factors are: 1. The nature and gravity of the offense or conduct; 2. The time that has passed since the offense, conduct, or completion of the sentence; and 3. The nature of the job held. Once the District has covered three Green factors, it should also give the applicant an opportunity to explain the circumstances surrounding the conviction, what has transpired after the conviction, etc. After all of this, the District can then decide, based on the body of information it has, whether the prior conviction can be used as the basis for not offering the applicant a job. We recommend that as a matter of practice, the District notify an applicant in writing when criminal history information is used to deny an offer of employment. In doing so, the District should note which conviction(s) is being relied upon in making that decision, attach a copy of the conviction history report (if applicable) and provide five (5) business days for the applicant to respond to the notice before the decision in final. If the decision is made final, another written notice must be sent to the applicant. Doing this helps mitigate any potential claims that an applicant may have that the District improperly used prior conviction information during the hiring process.

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 9