Please ensure Javascript is enabled for purposes of website accessibility Conditional Offer of Employment Vs. Being Hired in California - Pride Legal

Applying for a new job is strenuous for everyone, regardless of prior experience or qualifications. In some cases, an individual may receive an offer of employment contingent on some specific factors. This type of job offer is called a Conditional Offer of Employment. Understanding the difference between being hired and a Conditional Offer of Employment will help California job-seekers navigate the job market.

Conditional Offers of Employment in California

The formal definition of a Conditional Offer of Employment is a job offer made by an employer that requires the new employee to meet specific requirements to accept the position. Conditional Offers of Employment are different from a company hiring someone immediately, as the offer of employment is contingent on completing specific tasks or criteria. These requirements vary between companies and the timeline during which the employee must meet said conditions. Depending on the company, a conditionally hired employee may be required to meet all requirements before starting the new job. In contrast, other companies may allow completion of the criteria within a specific timeline after beginning work.

Common Criteria for Conditional Employment:

  • Drug-testing
  • Completing and passing a background investigation
  • Completion of any or licensing requirements
  • A credit history check
  • A Physical Health Examination

The above is not an exhaustive list of conditional requirements an employer may require one to meet. Regardless of the conditions an employer requires, failure to comply is sufficient reasoning for them to rescind a Conditional Offer of Employment.

When is a Conditional Offer of Employment Illegal?

Generally, Conditional Offers of Employment are not illegal. However, there are some conditions that a company cannot require of a conditional employee. Further, various legal stipulations surrounding the information provided through meeting conditions are not viable as grounds for rescinding an Offer of Employment. Other illegal conditions for an employer to set require a specific marital status or adherence to a particular religion.

More specifically, Federal and California Equal Employment Opportunity Laws prevent Conditional Offers of Employment from rescinding employment offers based on discriminatory actions based:

  • Sex
  • Gender
  • Religionw
  • Nationality
  • Age
  • Mental Disabilities
  • Physical Disabilities
  • Gender Identity
  • Military Status
  • Veteran Status
  • Health Conditions
  • Genetic Inconsistencies

It is also unlawful or an employer to require the conditional employee to disclose information about their criminal record as a means for withdrawing a Conditional Offer of Employment.

The Fair Chance Act: Criminal History and Employment

Legally, an employer cannot require a potential new employee to disclose information about their criminal record. The Fair Chance Act prohibits any such behavior. The California Legislature enacted the Fair Chance Act to prevent employers or companies from refusing to offer individuals jobs based on past criminal history. The bill prohibits businesses or companies with more than five (5) employees from inquiring about an individual’s past criminal convictions before offering them the job. Specifically, the Act prohibits employers from engaging in the following actions:

  • Requiring information about an individual’s criminal history to be disclosed on an employment application before making a Conditional Offer of Employment
  • Verbally inquiring about an individual’s criminal history before offering a Conditional Offer of Employment.
  • Considering information regarding an individual’s previous arrests, involvement in trials, and dismissed or dropped charges when determining whether employers will extend a Conditional Offer of Employment.

Once an employer extends a Conditional Offer of Employment, they may legally inquire about the conditional employee’s criminal history. However, they may only consider information regarding previous convictions. The employer may not consider information regarding criminal acts for which a court did not convict the individual. It is also important to note that it is legal for an employer to require a background check as a part of a Conditional Offer of Employment. However, employers cannot legally conduct the background check without the conditional employee’s written consent. It is also important to note that this Act does not apply to all employers in California.

Employers Exempt from the regulations in the Fair Chance Act:

  • Employers/companies who have less than five employees
  • Law Enforcement Offices
  • Employers in the field of Criminal Justice
  • Government Agencies
    • More specifically, a job that requires a preliminary background check is legally able to inquire about an individual’s criminal record.

Can an Employer Rescind a Conditional Offer of Employment Based on One’s Criminal Record?

One question that many individuals with a criminal history and a conditional offer of employment ask is whether their previous convictions are legally viable as grounds for an employer to rescind the offer. The short answer to this question is that employers can use previous criminal conditions to justify revoking a Conditional Offer of Employment. However, the Fair Chance Act requires employers to follow specific regulations in determining whether a conditional employee’s prior convictions are sufficient reasoning for rescinding a Conditional Offer of Employment.

Specifications for Rescinding Conditional Offers of Employment:

  • Complete a company-specific, individualized assessment.
    • Employers must personally review a conditional employee’s criminal record and determine whether the previous convictions equate to a level of severity that threatens their ability to perform job-specific responsibilities or the employee’s ability to assimilate into the company culture.
  • After completing their individualized assessment, the employer must notify the conditional employee of their decision. They must do so in a formal written notice.
  • The written notification must explicitly state the criminal conviction that disqualified the conditional employee.
  • The written notification must also include a copy of the formal conviction report given to the employer before deciding.
  • Once notice has been given, the employer must grant the disqualified conditional employee at least five business days to respond to the decision.
  • If the individual replies, the employer must consider the information provided in the response.
  • Lastly, after a formal review of the response has been reviewed, the employer must issue a final decision.

Contact Pride Legal

If you or a loved one have lost a conditional job offer or are facing unjust employment discrimination, contact Pride Legal. We’ll get you in touch with an LGBT-friendly Employment Discrimination Attorney that meets your needs and preferences! To protect your rights, hire someone who understands them.

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