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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34386
Experience:  Retired (mostly)
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Ca Corp. hiring Ca employee. We run background checks and drug

Resolved Question:

Ca Corp. hiring Ca employee. We run background checks and drug testing due the nature of our job. We have the potential employee sign consent forms for both. Applicant was hired contingent upon his background and drug test results. We received the background check with a misdemeanor conviction of theft, which he was given 5 years probation, and 365 day jail time. Charge date 2001 and disposition date 2004.
Employee lied on application that he was never convicted of a crime

Can we rescind his offer of employment due to lying on application regarding the conviction?
Is the conviction to old for us to use as reference?
If we can let him go, do we automatically give him his background report?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
I need to do a little research. You're actually raising a few different potential issues. I will look into this and the system will send you an email when I post an answer.

Thanks for your understanding and cooperation.
Expert:  socrateaser replied 3 years ago.
Can we rescind his offer of employment due to lying on application regarding the conviction?

A: Maybe. See, e.g., Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632 (after-acquired evidence of employee wrongdoing that went to the heart of the employment relationship, i.e., concealing felony convictions which would have barred employment under applicable law, was defense to wrongful termination claim). The counterargument is that the refusal to hire is based upon the conviction itself, raising the specter of race, color, nationality or some other type of disparity that disproportionately and negatively affects a particular class of persons. In general, however, if the employer would have fired or not hired, based upon the severity of the lie, then that is grounds to refuse to hire.

Is the conviction to old for us to use as reference?


A: A conviction that is more than seven years old cannot be provided by the background checking agency, and the employee may have a cause of action against that agency for lost wages or interference with prosepective economic relations. However, once the employer knows of the employee's true status, the employer is free to act on that knowledge.

If we can let him go, do we automatically give him his background report?

A: Applicants or employees must be given a form on which they may check a box indicating a wish to receive a copy of any investigative report prepared regarding them. If the box is checked, the employer must send a copy of the report to the applicant or employee within three days after the employer receives it (or the investigating agency may send it on the employer's behalf). The copy must contain the name, address and telephone number of the person who issued the report and how to contact that person; and, if adverse action is taken based on the report, the name of the investigative consumer reporting agency making the report. Cal. Civil Code §§ 1786.16(b), 1786.40(a).

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 3 years ago.

So I am better off refusing to hire or let employee go based on the knowledge that employee lied on application, not necessarily that he has a conviction on his record?

The implications of having any type of conviction impact our contracts with our clients, as require workers with clean criminal records on their properties.

Expert:  socrateaser replied 3 years ago.

So I am better off refusing to hire or let employee go based on the knowledge that employee lied on application, not necessarily that he has a conviction on his record?

 

A: If there is a job-related reason why you need scrupulously honest employees, then that would be a far preferable rationale for refusing to hire or terminate, in my view.

 

Hope this helps.

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!



 

socrateaser, Lawyer
Satisfied Customers: 34386
Experience: Retired (mostly)
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