Transcript Criminal Background Checks

Criminal
Background
Checks
Legal or Not?
John Start
International Crime Free
Association
Crime Free Partners
Crime Free Platinum
Community Policing Trainer
Certified National Trainer
Crime Free Programs
Are Criminal Backgrounds Legal?
• What we need too consider
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Federal Statutes
Federal Fair Housing Act
California Fair Housing Laws
California Fair and Equal Employment and Housing
California State Statutes
California Case Law
California State Constitution
It is well understood
Residential Landlords
May establish a tenant selection criteria
Concerning the applicants
General character and past conduct
To protect current residents
And neighbors from anyone
Who may pose a threat
To their health and safety.
Federal Fair Housing Act
Specifically,
Allows Landlords
To refuse to rent
To anyone
Who may be a threat
To the health
And safety of others
California Case Law
Established,
Landlords have a duty
To protect the public
And other tenants
From Foreseeable harm
By a tenant
that could have been prevented
Rosales v Stewart (1980) 113 CA3d 130
Negligent Doctrine
An Employer is responsible for
The behavior or their Employees
If an Employee causes harm to someone
and the Employer knew or should have
known that the Employee had a
propensity for bad behavior then the
Employer can be held Liable
Argument
The potential for
Claims of class-based
Fair Housing or
Fair and Equal Employment and Housing
Discrimination
Arbitrary Decisions
Invasion of Privacy
California Case Law
Not specifically
Addressed the issue
Landlord’s Right to Acquire
Criminal Background Information
From Applicants
No Legal Precedent to follow for this issue
California Constitution
Article I
Protects persons
From being required
To disclose personal Information
If they have a Reasonable
Expectation of Privacy
Balancing Test
The Courts would consider
Whether the perceived intrusive nature
Of the questions regarding
Past criminal convictions or behavior
Is outweighed by the risk of Liability
Associated by renting to someone
Who poses a health or safety risk
Illegal Discrimination
State Fair Housing Laws
Prohibits the application
Of a uniform and objective standard
For selecting tenants
If the standard excludes a disproportionate
Number of members of
A protected class
And the Landlord does not have
A business necessity for using that standard
California Law
A Landlord’s selection criteria
That has a discriminatory effect
On a protected class of individuals
Must be necessary
To the operation of the business
And effectively carry out
The significant business needs
It is alleged to serve
Remember
The Fair Housing Act
Provides that a Landlord
Is not required
To rent to applicants
Whose tenancy would constitute
A direct threat
To the health or safety
Of other individuals
Are Criminal Backgrounds Legal?
Legal opinion is
That they are
So long as the criminal background
Is limited to a certain time frame
Comes from a reliable source
And is for the purpose
Of finding past bad conduct
That would put the residents and neighbors
In a state of potential harm
Fair Housing Considerations
Be consistent
With all applicants
Ask about
Criminal Background Information
And run
Criminal Background checks
On every applicant
Conviction v Conduct
People convicted of crimes
Are generally protected
From further “Punishment”
For their crimes
Based upon
Unfair and discriminatory treatment
Conviction v Conduct
Exception
Under Fair Housing Laws
Landlords can deny an application
Based on the fact that prospective tenant
Was convicted of the Manufacture
Or Distribution of
A controlled substance
Bottom Line
Deny applications
Based on the past bad conduct
That led to the conviction
And not the conviction itself
Unless the conviction
Was based on
Illegal drug sales or manufacturing
Employers
Criminal Background Checks
Credit Checks
Drug Testing
Pre-Employment
For Cause
Random
Discussion
Western Regional Chapter
of the International Crime
Free Association/Crime
Free Partners
Criminal Background Checks