Criminal Background Checks John Start International Crime Free Association Crime Free Partners Crime Free Platinum Community Policing Trainer Certified National Trainer Crime Free Programs John Start International Crime Free Association Crime Free Partners Crime Free Platinum Community Policing Trainer Certified National Trainer Crime Free Programs Legal or Not?

Are Criminal Backgrounds Legal? What we need too consider 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 What we need too consider 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. 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 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 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 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 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 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 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 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 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 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 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 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 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 People convicted of crimes Are generally protected From further “Punishment” For their crimes Based upon Unfair and discriminatory treatment

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 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 Conviction v Conduct

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 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 Criminal Background Checks Credit Checks Drug Testing Pre-Employment For Cause Random

Discussion Criminal Background Checks Western Regional Chapter of the International Crime Free Association/Crime Free Partners