The State of California Law with Regard to Considering an Applicant’s Criminal History

Employers may be already aware of the significant movement afoot to eliminate the consideration of an applicant’s criminal history, both from job applications and the interview, until a conditional offer of employment has been made. Variously termed “Ban the Box” or “fair chance” laws, the goal is to “ensure a fairer decision-making process” because, it is believed, anything that makes it harder for ex-offenders to find a job makes it more likely they will re-offend.

In California, the state of the law in this area is very much in flux. The purpose of this Bulletin is to discuss the current state of the law, including a new set of regulations issued in January, and provide a preview of pending legislation that is reasonably likely to be signed into law.

The Current Law

Under the current California laws and regulations, it is unlawful for an employer to consider the following from an applicant’s background record when hiring:

• An arrest or detention that did not result in a conviction
• A referral or participation in a pre/post-trial diversion program
• A conviction that has been sealed, judicially dismissed, expunged or statutorily eradicated
• An arrest, detention, etc. while the applicant was subject to the jurisdiction of a juvenile court (i.e., under 18 years of age)
• Any non-felony conviction for possession of marijuana that is more than 2 years old
• Any criminal history if it will result in an adverse impact on individuals within a protected class (commonly termed disparate impact discrimination)

Before an employer can refuse to hire based on an applicant’s criminal history, it must provide the applicant notice of the disqualifying conviction and an opportunity to show that it is factually inaccurate. If shown to be inaccurate, the conviction cannot be relied upon.

There are exceptions to these prohibitions for certain classes of employers, including health care facilities, that are required by law to screen prospective employees or prohibit hiring of individuals with criminal records.

Additionally, the cities of San Francisco and Los Angeles have enacted their own “Ban the Box”-type ordinances with more stringent requirements/limitations than those described above.

Pending Legislation

Assembly Bill 1008, introduced on February 16, 2017, proposes to add a section to California’s Fair Employment and Housing Act (FEHA), which would create new statewide restrictions on employers’ ability to make pre-hire decisions based on an applicant’s criminal history.

Under the proposed new law, employers:

• Cannot include on an application any question that seeks disclosure of the applicant’s criminal history
• Cannot inquire or consider an applicant’s criminal history before the applicant receives a conditional offer of employment
• Cannot consider an applicant’s conviction of a misdemeanor where no jail time is possible
• Cannot consider infractions or misdemeanor convictions older than 3 years
• Cannot consider felony convictions older than 7 years
• Must undertake an individualized assessment to determine whether a conviction has a “direct and adverse relationship” with the specific duties of the job sought before the applicant can be denied employment based on a conviction

If the employer decides, following this individualized assessment, to deny employment it must provide written notice that:

• Identifies the specific conviction relied upon to deny employment
• Provides a copy of the conviction history report
• Provides examples of mitigation or rehabilitation evidence that the employer would consider
• Provides notice of the applicant’s right to respond within 10 days

The applicant may then offer information that challenges the accuracy of the conviction or provide mitigation/rehabilitation evidence. In its current form, the bill requires the employer to consider any mitigation/rehabilitation evidence the applicant offers.

If the applicant does not respond to the first written notice, or upon receipt of the applicant’s response the employer still decides against hiring the applicant, it must provide a second written notice that:

• Notifies the applicant of its final decision
• Describes any existing internal procedure under which the applicant can challenge the employer’s decision
• Discusses whether the applicant could be eligible for other positions at the company
• Identifies the earliest date when the applicant can reapply to the employer for a position
• Notifies the application of its right to file a complaint with the California Department of Fair Employment and Housing (DFEH)

What Should Employers Do?

California employers should ensure that their hiring practices fully comply with existing California laws, which must include consideration whether they are also governed by the separate ordinances for the cities of San Francisco and Los Angeles. Additionally, employers should monitor the progress and outcome of Assembly Bill 1008, and appropriately adjust their practices if it passes. Employers with lingering questions should not hesitate to contact their experienced employment law counsel.