California Governor, Gerry Brown, recently amended the Fair Employment and Housing Act (FEHA) by adding a new Section (12952), relating to ban-the-box. The effective date of the legislation is January 1, 2018.
The new state-wide California “ban-the-box” legislation will not pre-empt the current San Francisco and Los Angeles ban-the-box laws therefore, it is recommended that California employers speak with their legal counsel as it relates to their compliance with each legislation that my impact their business.
California AB 1008 will add a new Section to the FEHA with new state-wide restrictions on employer’s ability to make employment decisions based on the applicants/employees criminal history information. The legislation will apply to employers with 5 or more employees and will make it an unlawful employment practice under the FEHA for an employer to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions. Employers must also perform an individualized assessment and modify their pre-adverse and adverse action notices to include certain specific information.
Specifically the legislation states:
SEC. 2. Section 12952 is added to the Government Code, to read:
12952. (a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following:
(1) To 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 conviction history.
(2) To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
(3) To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment:
(A) Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code.
(B) Referral to or participation in a pretrial or post-trial diversion program.
(C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
(4) To interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(c) (1) (A) An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment described in this paragraph, the employer shall consider all of the following:
(i) The nature and gravity of the offense or conduct.
(ii) The time that has passed since the offense or conduct and completion of the sentence.
(iii) The nature of the job held or sought.
(2) If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision. The notification shall contain all of the following:
(A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
(B) A copy of the conviction history report, if any.
(C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
(3) The applicant shall have at least five business days to respond to the notice provided to the applicant under paragraph (2) before the employer may make a final decision. If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.
(4) The employer shall consider information submitted by the applicant pursuant to paragraph (3) before making a final decision.
(5) If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following:
(A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
(B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
(C) The right to file a complaint with the department
(d) This section does not apply in any of the following circumstances:
(1) To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
(2) To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
(3) To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.
(4) To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations
promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).
Link to the California amended FEHA Ban the Box Law (AB 1008): CA AB 1008
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The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage Corporation makes no assurances regarding the accuracy, completeness, currency or utility of the above information. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly.