Under new Section 12952 of the Government Code, it is unlawful for employers with five or more employees to do any of the following:
- Include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s criminal history;
- Inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the applicant has received a conditional offer; and
- Conduct a criminal background check in connection with any application for employment, to consider, distribute, or disseminate information on any of the following:
- Arrest not followed by conviction, except where the applicant is out on bail or on his or her own recognizance pending trial;
- Referral to or participation in a pretrial or postrial diversion program; or
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
Before denying the applicant the position due (even in part) to the conviction history, the employer must conduct an “individualized assessment” into whether an applicant’s conviction history has a “direct and adverse relationship” with the specific duties or obligations of the job for which the applicant is being considered. In making such an assessment, the employer must consider the following:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and completion of the sentence; and
- The nature of the job held or sought.
If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant, the employer must provide notice in writing to the applicant that includes all of the following:
- That the applicant’s conviction history disqualifies the applicant from employment;
- Which conviction or convictions form the basis for the preliminary decision;
- A copy of the conviction history report;
An explanation (1) that an applicant has the right to respond to the notice before the decision becomes final, (2) of the deadline to respond, and (3) that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances, or both.
The employer must allow the applicant at least five business days to respond to the notice. If the applicant notifies the employer in writing that he or she is disputing the conviction history and is taking steps to gather supportive evidence, the employer must allow five additional business days to respond to the notice.
If the applicant submits any additional information, the employer must actually consider that information before making a final decision.
If an employer makes a final decision to deny an application due (even in part) to the applicant’s conviction history, the employer must notify the applicant in writing of all the following:
- The final denial or disqualification;
- Any existing procedure the employer has to challenge the decision or request reconsideration; and
- The right to file a complaint with the California Department of Fair Housing and Employment.
Despite intense lobbying from industry associations, this law does not pre-empt other ordinances and regulations in California. See:
January 1, 2018, will be the effective date of this new Act.
The law is available here for review:https://leginfo.legislature.ca.gov/faces/billVersionsCompareClient.xhtml?bill_id=201720180AB1008&cversion=20170AB100892ENR
What This Means to You:
- This applies to all employers in the state of California who employ five or more people.
- Employers may not request criminal background information on a job application or before making a conditional offer of employment.
- The employer must consider whether an applicant’s conviction history has a “direct and adverse relationship” with the specific duties or obligations of the job.
- If the employer preliminarily decides to disqualify the applicant, the employer must give a specified written notice and allow the applicant five business days to respond to the notice with example of mitigations or rehabilitation evidence.
- If the employer finally decides to disqualify the applicant, the employer must provide a second specified notice.