Governor Brown signed a new law in California that may impact your hiring processes and practices. It went into effect on January 1, 2018, and restrict employers’ use of criminal history during the employment screening process.
- Applies to employers with five or more employees.
- May not ask about criminal history prior to a conditional offer.
- Employers must conduct an individualized assessment if considering taking adverse action as a result of an applicant’s criminal history.
- Employers have additional obligations in the event they intend to take adverse action
Who does this affect?
The law applies to employers with five or more employees.
What is prohibited in the law?
Employers may not:
- Include any question that seeks the disclosure of an applicant’s conviction history on any application for employment prior to making a conditional offer;
- Inquire into or consider an applicant’s conviction history until after the employer has made a conditional offer of employment;
- Consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment:
- Arrest not followed by conviction, except in the circumstances as permitted in California Labor Code Section 432.7;
- Referral to or participation in a pre-trial or post-trial diversion program;
- Convictions that have been sealed, dismissed, expunge, or statutorily eradicated pursuant to law;
- Interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under Section 12952.
Can employers still consider and take adverse action based on an applicant’s criminal history?
Yes, but employers that intend to deny an applicant, in whole or in part, because of their conviction history must make an individualized assessment of whether there is a direct and adverse relationship with the job that would justify their denial of such job. The results of an individualized assessment may, but is not required to, be committed to writing. In making an assessment, employers are to consider all of the following:
- 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 decision that an individual’s conviction history disqualifies the applicant, the employer must notify the applicant of the preliminary decision in writing. This notice must contain all of the following:
- Notice of the disqualifying conviction(s) that are the basis for the preliminary decision to rescind the offer.
- A copy of the conviction history report, if any; and
- An explanation of the applicant’s right to respond to the notice before the decision becomes final and the deadline 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.
The applicant has at least 5 business days to respond before the employer may make a final decision. If, within the 5 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 and that the applicant is taking specific steps to obtain supporting evidence, then the applicant shall have 5 additional business days to respond. Employers shall consider information submitted before making a final decision. If an employer makes a final decision to deny an application because of conviction history, the adverse action notice shall include:
- The final denial or disqualification, and the employer may, but is not required to, justify or explain the employer’s reasoning;
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and ü The right to file a complaint with the department.
Are there exceptions?
Yes, please review and discuss with your legal counsel to determine if you meet one of the exceptions provided. The law also notes that these remedies shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.
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*Please note: Accurate prepared these materials for informational purposes only. These materials are not intended to be comprehensive, and are not a substitute for, and should not be construed as, legal advice. Accurate does not warrant any statements in these materials. Employers should direct questions involving their organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply, to their own legal counsel.