When it comes to legislation restricting employer use of criminal records, California seems to be leading the charge. In the last six months alone, we have reported on a variety of new laws that apply to California employers that use criminal records in pre-hire and other employment decisions.1 Continuing this trend, on February 16, 2017, five California assembly members introduced Assembly Bill 1008, which proposes to add a section to the Fair Employment and Housing Act (FEHA) containing new state-wide restrictions on an employer’s ability to make pre-hire and other employment decisions based on an applicant or employee’s criminal records, including a “ban-the-box” component.
This proposed bill follows closely on the heels of a flurry of state and local criminal background check legislative activity in California. On January 10, 2017, the California Fair Employment & Housing Council (FEHC) approved new regulations that borrow heavily from the Equal Employment Opportunity Commission’s (EEOC) 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.”2 At the city level, starting January 22, 2017, Los Angeles employers became subject to a comprehensive ban-the-box law, which goes well beyond requiring an employer to remove the question, “Have you ever been convicted of a crime?” from its job application. The Los Angeles law mandates also that employers provide applicants with a copy of any criminal history assessment as well as a copy of any re-assessment.3
AB 1008, as proposed, would make it unlawful for a California employer to:
- Include on an application for employment any question that seeks the disclosure of an applicant’s criminal history;
- Inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment; and
- Consider, distribute, or disseminate information that California already prohibits employers from considering (such as arrests that did not result in a conviction) as well as (1) misdemeanor convictions for which no jail sentence can be imposed, (2) infractions or misdemeanor convictions for which three years have passed since the date of the conviction and (3) felony convictions for which seven years have passed since the date of conviction.
AB 1008 also would require an employer that intends to deny employment to an applicant because of a prior conviction to conduct 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 this regard, the employer would be required to 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, and the nature of the job held or sought.
If an employer makes a preliminary determination based on the individualized assessment to deny the applicant employment, the employer would be required to go well beyond what the federal Fair Credit Reporting Act (FCRA) requires when notifying an applicant that they may be disqualified because of information discovered from a third-party background check.4 Specifically, the written notice would have to:
- Identify the conviction item that is the basis for the potential denial or disqualification;
- Provide a copy of the conviction history report, if any;
- Provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide, such as evidence showing that at least one year has passed since the applicant’s release from prison or jail without any subsequent criminal conviction or evidence showing compliance with the terms and conditions of probation or parole; and
- Provide notice of the applicant’s right to respond within 10 days.
The applicant would then have the right to provide information that challenges the accuracy of the information in the notification or that includes mitigation or rehabilitation evidence. The bill would require an employer to consider information submitted by the applicant before making a final decision and would prohibit an employer from disqualifying an applicant “if the applicant showed evidence of mitigation or rehabilitation.”
If an employer makes a final decision to deny employment because of a prior conviction, a second written notification must be provided to the applicant, which would have to include:
- The final denial or disqualification;
- Any existing procedure the employer has to challenge the decision or request reconsideration;
- Whether the applicant may be eligible for other employment or occupation with the employer;
- The earliest date the applicant may reapply for a position of employment; and
- The right to file a complaint with the Department of Fair Employment and Housing.
AB 1008 would exempt from its coverage positions for which a state or local agency is otherwise required by law to conduct a conviction history background check or to any position within a criminal justice agency.
We will continue to monitor this bill as it makes its way through the California legislature. In the meantime, California employers that use criminal records to screen applicants or employees should consider a review of their criminal record-based screening policies and procedures to ensure compliance with the various new California laws regulating these employment screening tools.