Applicant Conviction History in Hiring Decisions Now Barred in California

 

California joined a long list of states, municipalities, and companies in ‘banning the box’ with its enactment of AB 1008 at the end of 2017.  Essentially, this legislation forbids employers from using a job candidate’s conviction history as criteria for hiring.  To this end, California has barred a number of employer considerations, discussed below.

Prohibited Practices for Employers with Five or More Employees

  1. To include a question seeking a candidate’s conviction history on an application, if the application is provided prior to making a conditional offer;
  2. To consider a candidate’s conviction history after making a conditional offer for employment;
  3. To “consider, distribute, or disseminate” any of the below information while investigating conviction history with a background check:
    • Any arrests without convictions;
    • Involvement in diversion programs;
    • Any conventions which were “sealed, dismissed, expunged, or statutorily eradicated pursuant to law”
  4. Interfering, denying, or restraining of the rights listed above.

When a Conviction is Disqualifying

None of the above prevent employers from conducting otherwise legal background checks, though an employer is restricted in how it uses this information.  If a candidate has previously been convicted of a crime and the employer denies employment at least in part based on the conviction history, the employer must create an individualized assessment.  This assessment must explain the direct and adverse connection between the candidate’s conviction history and the specific job duties of the position.  The assessment should consider: (1) the nature and gravity of the offense; (2) the time that has passed since the offense; (3) the nature of the job.

If the employer makes a preliminary decision that a conviction history would disqualify the candidate, then the employer must notify the employee.  In this notification, the employer must:

  1. Disclose any disqualifying conviction or convictions which are the basis to rescind an offer;
  2. Provide the candidate with a copy of the conviction history report which the employer used;
  3. Explain the candidate’s right to respond before a final decision is made. This explanation must describe the candidate’s ability to provide evidence which challenges the conviction history report’s accuracy, of rehabilitation, and/or of mitigating circumstances.

From there, the candidate has five business days to respond.  If the candidate responds within the five-day period that they are collecting evidence to dispute the report’s accuracy, the candidate will receive an additional five days to present evidence.

If evidence is presented, the employer is required to consider it before making a final decision.  If the employer still decides to disqualify the candidate based upon their conviction history, the employer must provide the candidate with written notice of the following:

  1. The final decision not to hire the candidate;
  2. The employer’s existing policies for the candidate to challenge the decision;
  3. The candidate’s right to file a complaint with the Department of Labor;

AB 1008’s Inapplicability to Specific Jobs

The following positions are exempt from the above-stated requirements:

  1. Any position where a state or local agency requires a conviction history check;
  2. Any position with a criminal justice agency;
  3. Any position as a Farm Labor Contractor;
  4. Any position where a state, local, or federal law requires a criminal background check for employment purposes or restricting employment based on criminal history.

Conclusion

The California’s new law creates a more nuanced system to allow formerly convicted candidates to gain employment.  Employers’ will still have autonomy in who they hire, but they will need to explain their reasoning for denying employment based upon candidates’ criminal histories.  As with all employment laws which seek to give protection to a particular group, Employer’s beware that your actions may create vulnerability to discrimination claims.   Carefully document your steps leading to a hiring and firing.  It’s not enough to have a non-discriminatory basis for your decisions.  You also have to be able to prove it.

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