California has enacted a significant new employment and bidding law that that applies to all construction contractors doing business with the State of California.
General employment law in California has long prohibited employers from asking an applicant for employment to disclose information concerning convictions that have been sealed, expunged, or statutorily eradicated, and certain marijuana-related convictions if the convictions are more than 2 years old.
Similarly, the State of California and its local agencies are prohibited from asking a job applicant to disclose information regarding a criminal conviction, except as specified, until the agency has determined the applicant meets the minimum employment qualifications for the position.
As of January 1, 2015, the California Fair Chance Employment Act requires any person submitting a bid for a state contract involving onsite construction-related services to certify that the person will not ask an applicant for onsite construction-related employment to disclose information concerning his or her conviction history on or at the time of an initial employment application.
This law does not apply to a position for which a person or state agency is otherwise required by state or federal law to conduct a conviction or criminal history background check or to any contract position with a criminal justice agency, as specified. It also does not apply to a person to the extent that he or she obtains workers from a hiring hall pursuant to a bona fide collective bargaining agreement.
The City and County of San Francisco have enacted a similar local ordinance regarding the hiring of persons in San Francisco. It prohibits asking criminal history questions prior to an offer or interview and requires a statement to that effect to be included in the hiring advertisement and a parallel notification of union halls of an intent to follow that local law. It applies to companies who have even minimal contacts with San Francisco governmental agencies or whose employees briefly work, even from home, in San Francisco. Unlike the State law, the San Francisco Ordinance requires notification of union halls of the company's intent to comply with the law and hire in accordance with its terms.
The collective purpose of these statutes and ordinances is to allow persons with an arrest or criminal conviction to still apply for a job, contest the result of an erroneous criminal record on a background check and otherwise have a fair chance for employment after contesting their arrest or serving their time. It still allows employers to hire the best qualified and appropriate candidate.
This will likely require all California contractors to make changes on their corporate job application - at least with regard to California employment or the execution of projects in the State.
Early compliance with these statutes can serve as both a sword and a shield: it will keep you from getting hit with fines or a discrimination lawsuit, but can also serve as a basis of a legitimate bid protest against one of your competitors (particularly less sophisticated ones) who do not yet know about the rules on Caltrans, DWR or similar projects.
A copy of the California statute is as follows:
Public Contract Code 10186.
Approved by the Governor on September 30, 2014. Filed with Secretary of State on September 30, 2014.
SECTION 1. Section 10186 is added to the Public Contract Code, to read:
10186. (a) This section shall be known, and may be cited, as the "Fair Chance Employment Act."
(b) Any person submitting a bid to the state on a contract involving onsite construction-related services shall certify that the person will not ask an applicant for onsite construction-related employment to disclose orally or in writing information concerning the conviction history of the applicant on or at the time of an initial employment application.
(c) This section shall not apply to a position for which the person or the state is otherwise required by state or federal law to conduct a conviction history background check or to any contract position with a criminal justice agency, as that term is defined in Section 13101 of the Penal Code.
(d) This section shall not apply to a person to the extent that he or she obtains workers from a hiring hall pursuant to a bona fide collective bargaining agreement.