Given California’s relatively new “ban the box” law, employers are limited in how they can use criminal history in employment decisions. For current employees, once a conviction is uncovered, you can’t automatically fire someone for it. Rather, employers must make an individualized assessment to determine if the conviction has a direct and adverse relationship with the actual job. To do so, employers must consider:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and the completion of the sentence; and
- The nature of the job held or sought.
This also means the employer must talk to the employee and get his/her side of the story.
For example, if the offense was 20 years ago, and the employee is long-tenured without any formal discipline as to any inappropriate conduct (such as harassment), a termination would not be justified in most workplaces. However, if the workplace involves children, or law enforcement, or positions that require certain licenses, then that is a different story.
There are other avenues to address the situation, such as lying on an employment application. An employer with a well-worded employment application, where the conviction was omitted at the time of hire, could justify termination (especially if others have also been terminated for material misrepresentations on the application). In addition, dishonesty (or lack of candor) in the investigation process once commenced can also justify termination.
While many coworkers might not want to work with known sex offenders, the flipside is that there are over 100,000 registered sex offenders in California. And the trend in California is to give more rights to those who want to work, not less. And yes, that applies to sex offenders.