No Mention of Background Checks In CA's Violence Prevention Law. Why?

If you want to prevent workplace violence, conventional wisdom says, don’t hire people with a history of violence, or abusive and harassing conduct.

California, in its new workplace violence prevention law, identifies domestic abuse as one of the four types of sources for workplace violence. 

Logically then, not hiring someone with a significant domestic violence history would be a safety risk in a workplace with young women.

Pre-employment background checks can be helpful tools in identifying someone with a propensity for abusive behavior. And; thus, beneficial for lessening the risk of hiring someone who might engage in workplace violence. 

Over the years, until I retired from my investigation practice in New Mexico, I conducted employment related backgrounds for two government agencies, a pre-school, and multiple private businesses. 

Although the sources were tailored to the positions being filled, the backgrounds looked for signs of abusive behavior, anger management issues, compulsive behaviors like gambling, and sexual aggression. I used a variety of sources to develop a profile:

•  Civil and criminal litigation.
•  Restraining orders/ orders of protection and back child support pleadings.
•  Incident and accident reports (for underlying conduct assessment only. See EEOC below)
•  Bankruptcies/liens/judgments
•  News articles

The goal wasn’t to exclude anyone, but to help employers get a sense of potential risks. Hiring is never without risk. And the goal was to understand those risks. 

But these days, it’s not so simple. 

In many places, California included, employers are restricted on what information can be considered about an applicant’s history when making hiring decisions. 

And in some significant ways, this limits the effectiveness of a pre-employment background checks, especially when it comes to workplace violence prevention. 

California, in its groundbreaking new workplace violence prevention law does not mention conducting pre-employment background checks as part of a workplace violence prevention program.. 

And its focus on preventing violence through day to day practices seems to be a conscious decision.

Ban the Box

In more and more places, employers are prohibited from asking about criminal convictions until after extending a job offer. 

It started with a push to “ban the box”. 

Initially directed towards hiring within government agencies, and then later, private sector employers, employers were prevented from asking on an employment application, or during an initial job interview, whether an applicant had “ever been arrested, charged, or convicted of a felony or misdemeanor.”

The goal of ban the box, was to prevent an employer from rejecting an applicant solely because of having a criminal history. Thus, banning the box enacted to get employers to evaluate candidates on merit, and fit for the job. 

The prevailing notion behind these laws was that the person is not the crime. That a person should be able to move forward once he’s paid his debt to society.

Before ban the box laws, most employment applications allowed an applicant to explain in detail, the circumstances of any involvement in the criminal justice system. And many employers factored those explanations in along with information from a background investigation, in making employment decisions.

But there were employers who did not. Instead they eliminated applicants solely because they had checked the box..

Recidivism rates also factored into ban the box laws. Studies showed that gainful employment lowers those rates. So ban the box was also said to not just benefit the applicant, but society too.

Fair Chance 

But some people still felt the hiring process unfairly blocked those who’ve had run ins with the criminal justice system, and that more needed to be done to recognize the historic inequalities within the criminal justice system.

Racism, and poverty, do play a role in the criminal justice system. Incarceration rates do not reflect overall demographics, but are heavily skewed towards minorities and lower income people.

And that led to the “fair chance” laws.

States like California, went beyond ban the box, placing further constraints on the types of criminal histories that could be considered in hiring decisions.

Employers were prevented from posting job notices that excluded felons. And arrests and criminal charges that did not end in conviction were barred from employer consideration.

Basically, arguing if society doesn’t hold someone accountable for his conduct, employers shouldn’t either.

Last year, California went further, it included a list of “mitigating” factors that employers must consider in an assessment of a candidates fitness for a position. Before an employer rejects a candidate, because of a criminal history, the employer first must weigh the mitigating factors and determine if underlying factors played a role in the applicants actions.

And, some states, California included, are allowing those involved in the criminal justice system to “expunge” their criminal cases, removing them from the public record. Once expunged. All records of the actions that led to a prosecution are erased from view, and won’t appear during a background check.  

In California, expunged cases cannot be considered in employment hiring.

There’s little uniformity state to state, in what types of crimes can be expunged, or how long after a conviction records can be expunged. 

In addition, California also restricts the use of information related to criminal conduct that can be found through publicly available sources on the internet.

But, one has to wonder 

Would California try to prevent vendors, clients, and others from choosing to stop working with a company that hired someone whose criminal actions are available for the public to see, but for an employer to not be able to use?

California states in its regulations that nothing prohibits an employer from conducting a pre-employment background check. However, clearly, the restrictions limit its effectiveness when it comes to workplace violence prevention.

Therefore, California employers in complying with the new workplace violence prevention law, must really focus on developing and implementing a violence prevention program that focuses on identifying, and addressing any abusive behavior as soon as it surfaces.

It’s shifts the burden. Perhaps more so than in other states. And even per the US Government.

The EEOC’s Different Take on Pre-Employment Backgrounds

The US EEOC, in 2012, updated its guidance on the use of arrest and conviction records to help address the racism, and built in biases, within the criminal justice system. 

But, they took a very different tact than California.

The EEOC focused on preventing discriminatory hiring practices against protected classes, such as race, or national origin, based upon criminal records history. An employer could not engage in disparate treatment of applicants based upon their criminal record history.

The EEOC also stated that an employer may not make an employment decision because of the existence of an arrest record, because an arrest is not proof that a crime has been committed.

But, unlike California’s restrictions, the EEOC noted, “However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”

And here’s why, when it comes to workplace violence prevention, that matters.

According to the California Department of Justice, in 2022 in California there were 86,860 violent felony arrests including homicide, rape, robbery, assault, and kidnapping. Just over half, 54.5%, of those arrests led to convictions. 

Yet, despite the arrests being for violent felonies, California prevents employers from even considering the underlying conduct that led to the arrest. 

Assaults accounted for 81.6% of felony arrests in California in 2022. And, the most common acts of workplace violence are assaults. Thus, employers, prohibited by California from using arrest records for employment decisions, are potentially at risk for hiring someone with a history of engaging in similar conduct that California prohibits under the new workplace violence prevention law.

According to the California Department of Justice, in 2022 the clearance rate for all violent crimes in California was just 41.0%. The clearance rate on rapes was only 27.7%, and the clearance rate for aggravated assault was 47.0%.

While no one knows if those not charged could be a danger in the workplace. It certainly increases the risk factors that can lead to violence.

Want some help navigating California’s new workplace violence prevention requirements. Download my free workplace violence prevention checklist here. Or schedule a free consultation here.

Mike Corwin helps employers establish, implement, and maintain an effective workplace violence prevention program that keeps employees safer and complies with California's new workplace violence prevention program. Website