An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

Schools will, however, need to comply with the law for any positions that do not involve contact with minors. For those positions, the school may not request or consider an applicant’s criminal history until after the school has made a conditional offer of employment. 99 The school must then make an individualized assessment about whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. 100 The school must consider the nature and gravity of the offense, the length of time that has passed, and the nature of the job sought. 101 If the school decides the conviction history disqualifies the applicant, the school must inform the applicant in writing, stating which convictions the school relied on and attach a copy of the conviction report. The school may decide to inform the applicant of the reason(s) for its decision, though the school is not required to provide an explanation under the law. 102 The applicant then has a right to respond, which the school must disclose to the employee when informing him or her of the decision. 103 The applicant has at least five business days to respond before the school may make a final decision. 104 Schools should review all employment applications and make sure that any applications asking about conviction history are for positions where employees will be in contact with minors. For any positions where the school is required to conduct a background check, the school may still ask about convictions on the initial application. This law does not override or preempt the local ordinances on the subject, so if a school’s local ordinance has slightly different requirements about the notification process, the school must follow those local ordinances. C. A PPLICATIONS M AY N OT I NQUIRE A BOUT C ERTAIN M ATTERS , I NCLUDING A RRESTS N OT R ESULTING I N C ONVICTION O R M ARIJUANA C ONVICTIONS O VER T WO Y EARS O LD Even in instances when an applicant is applying for a position that requires contact with minors, and therefore, the school may ask the applicant about his or her criminal history, there are limits on the type of criminal history information that the school may request, seek or consider. Schools may not inquire on an application form, or seek from any source, information concerning:  Arrests or detentions that did not result in convictions. 105 However, schools

may ask an applicant about an arrest that is pending adjudication by the court (e.g., when the applicant is currently out on bail or on his or her own recognizance pending trial); 106  A non-felony conviction for possession of marijuana that is two or more years old; 107  Referral to, or participation in, a pretrial or post-trial diversion program; 108

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 51