Earlier this year, new statewide regulations took effect in California concerning the consideration of criminal records in employment decisions. Now, California has taken additional steps to restrict an employer’s ability to make personnel decisions based on an individual’s criminal history.
On Oct. 14, 2017, Gov. Jerry Brown signed Assembly Bill 1008, which modifies the Fair Employment and Housing Act (FEHA) and prohibits California employers with at least five employees from inquiring about an applicant’s criminal history before a conditional offer of employment.
Specifically, the bill – which takes effect Jan. 1, 2018, makes it unlawful for employers to:
- Include in an application any question that seeks the disclosure of an applicant’s conviction history;
- Inquire into or consider the applicant’ conviction history;
- Consider, distribute, or disseminate information about any of the following while conducting a criminal history background check in connection with any application for employment: (1) an arrest that did not result in a conviction, subject to the exceptions in Labor Code § 432.7(a)(1) and (f); (2) referral to or participation in a pretrial or post-trial diversion program; and (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.
Once a conditional offer of employment is made, the employer may conduct a background check and consider an applicant’s criminal history. An employer cannot reject an applicant based solely or in part on their conviction history until there has been an individualized assessment of whether the conviction history would have a direct impact on the specific duties of the job sought. The assessment must include:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and completion of the sentence;
- The nature of the job held or sought.
The employer can, but is not required to, “commit the results of this individualized assessment to writing.” Should the employer determine that the applicant’s conviction history is disqualifying, it must notify the applicant in writing. The written notice must include:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer;
- A copy of the conviction history report, if any;
- An explanation that the applicant has the right to respond to the notice within five business days.
The applicant must also be informed that the response may include the submission of evidence challenging the accuracy of the conviction history report, or evidence of rehabilitation or mitigating circumstances, or both. If the applicant timely notifies the employer that they dispute the accuracy of the conviction and are taking steps to obtain supporting evidence, the applicant will have five additional business days to respond to the notice.
If the employer ultimately decides to reject an applicant based on the conviction history once this process has been completed, the employer must notify the applicant in writing. This notification must include the procedures available for the applicant to challenge the decision or request reconsideration as well as information about the applicant’s right to file a complaint with the state’s Department of Fair Employment and Housing.
The passage of AB 1008 comes amid a series of Ban the Box legislation activity in California. This includes a regulation which took effect in July addressing criminal conviction-related questions that employers may pose to applicants and employees. In addition, Los Angeles recently passed a ban-the-box law that, similar to AB 1008, requires employers to make an individualized assessment of applicant’s conviction history before making any employment decision based on that history. Employers should review their applications, along with the policies and procedures related to the screening process, to make sure they are in compliance with the various laws.