EMPLOYER USE OF CRIMINAL HISTORY IN CALIFORNIA

New California Ban the Box and Use of Criminal History Law Signed by Governor Brown
New California Anti-Discrimination Regulations on Use of Criminal History Information

Recommendations for Employers

Employers should review and revise their policies/practices regarding consideration of criminal histories and background screening processes, consistent with the new California law and regulations. Employers must also comply with relevant federal, state and local laws pertaining to consumer reports and consideration of criminal history information.

AB 1008—Ban the Box and Use of Criminal History (Effective January 1, 2018)

On October 14, 2017, Governor Brown signed AB 1008, adding Section 1252 to the Government Code and repealing Section 432.9 of the Labor Code. The law prohibits employers from including criminal history question on applications and from asking about or considering criminal history until after a conditional offer has been made. The law also requires employers who are considering denying employment based on a conviction history to conduct a specific individualized assessment and provide specified notices to the applicant. The law goes into effect on January 1, 2018.

The law applies to employers with 5 or more employees.

“Ban the Box”

The law prohibits:

Including questions about conviction history on any employment application, before making a conditional offer to the applicant.
Asking about or considering an applicant’s conviction history before making a conditional offer of employment.

Consideration of Criminal History

The law prohibits considering, distributing, or disseminating information about any of the following while conducting a conviction history background check in connection with an application for employment:

Certain arrests not followed by conviction.
Referral to or participation in a pretrial or post trial diversion program.
Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

Individualized Assessment

Employers who intend to deny a position of employment solely or in part because of an applicant’s conviction history must make an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific duties of the job, and must consider:

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.

Specified Notices

Pre-Adverse Action Notice

Employers are required to provide an applicant written notification of the preliminary decision to deny a position of employment based on the individualized assessment. The notice must contain the following information:

Notice of the disqualifying convictions(s).
Copy of the conviction history report, if any.
An explanation of the applicant’s right to respond to the notice before the decision becomes final and the deadline by which to respond. The notice must inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report and/or evidence of rehabilitation or mitigating circumstances.

The applicant must be given at least 5 business days to respond to the pre-adverse action notice. If, within the 5 business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, then the applicant has an additional 5 business days to respond to the notice. Employers are required to consider information submitted by the applicant before making a final decision.

Adverse Action Notice

If the employer makes the final decision to deny the position of employment, the employer must notify the applicant in writing of:

The final denial/disqualification.
Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
The right to file a complaint with the department.

Certain positions of employment are exempt from this law.

Note that the law does not supersede or preempt any other laws or local ordinances, so employers must still comply local ban the box ordinances, e.g. in San Francisco and Los Angeles which may impose additional obligations on employers.

In some instances, the new law is stricter than the recent California anti-discrimination regulations pertaining to criminal history which are detailed below. For example, in contrast to the regulations, the law does not sanction use of “bright line” conviction disqualifications in place of conducting an individualized assessment. The law also provides specific amounts of time employers must give applicants to respond to the pre-adverse action notice and specifies information that must be included in the pre-adverse action and adverse action notices.

California Anti-Discrimination Regulations on Use of Criminal History Information (Effective July 1, 2017)

New California Fair Employment and Housing Act (FEHA) regulations limit criminal history information employers can consider when making employment decisions and impose additional obligations upon employers considering criminal history. The regulations are similar to guidance issued by the Equal Employment Opportunity Commission (“EEOC”) in its April 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”

Consideration of Criminal History

Under the new regulations, employers cannot consider:

An arrest or detention that did not result in conviction;
Referral to or participation in a pretrial or post-trial diversion program;
A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law (e.g., sealed juvenile offense records);
An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law; and
A non-felony conviction for possession of marijuana that is two or more years old.

There may be additional convictions/records/criminal history that an employer cannot consider under federal, state or local law.

Job-Related and Consistent with Business Necessity

To show that a policy/practice of excluding applicants based on criminal convictions is job-related and consistent with business necessity, an employer must:

Show the policy/practice takes into account the following factors:
1. The nature and gravity of the offense or conduct;
2. The time that has passed since the offense or conduct and/or completion of sentence; and
3. The nature of the job held or sought, and
Demonstrate one of the following:
1. Any “bright-line” conviction disqualification distinguished between applicants that do and do not pose an unacceptable level of risk and has a direct and specific negative bearing on the person’s abilities to perform the job duties; or
2. That the employer conducted an individualized assessment by:
  1. Providing notice to applicant that they are being screened out because of a conviction;
  2. Providing a reasonable opportunity for the person to demonstrate the exclusion should not be applied; and

Considering whether additional information warrants an exception to the exclusion.

Specified Notice: Pre-Adverse Action Notice

Before taking an adverse action because of criminal history obtained from a source other than an applicant/employee, the employer must give notice of the disqualifying conviction to the applicant/employee and provide a reasonable opportunity for the person to present evidence that the conviction information is inaccurate.

Please note that this summary is not intended to constitute legal advice. If you have questions regarding compliance with these new California laws or other employment laws, please feel free to contact either Kristin Pedersen or Maki Daijogo at Daijogo & Pedersen, LLP through our website, www.dpemploymentlaw.com, or by calling us at 415.924.9400.