United States: California Adopts State-Wide Restrictions On Criminal History Inquiries For Job Applicants

Last Updated: January 16 2018
Article by Jeffrey S. Bosley and Julia Brodsky

Governor Jerry Brown recently signed Assembly Bill No. 1008, which restricts how and when public and private employers can ask applicants about criminal history when applying for employment in California. The new restrictions will be added to California's Fair Employment and Housing Act, and are effective January 1, 2018.  

California joins 29 states and over 150 U.S. cities which have enacted so-called "ban the box" ordinances prohibiting employers from requiring job applicants to disclose criminal history on their job application, and nine other states and 15 major cities, including San Francisco and Los Angeles, in enacting "fair chance" requirements concerning the use of criminal convictions in the hiring process. Our alert concerning the San Francisco Ordinance is here; and our alert concerning the Los Angeles Ordinance is here. The new state law adopts some, but not all, of the provisions of the San Francisco and Los Angeles Ordinances, and does not expressly preempt these ordinances. Employers hiring for positions in California will be required to comply with the new state law and current (and any potential future) local ordinances. 

AB 1008 prohibits private and public employers with at least five employees from:

  • Including on any employment application any question that seeks the disclosure of an applicant's conviction history;
  • Inquiring into or considering conviction history before an applicant receives a conditional offer of employment;
  • Considering, distributing, or disseminating any of the following while conducting a conviction history background check in connection with any application for employment: (1) an arrest that did not result in a conviction, subject to the exceptions in Labor Code § 432.7(a)(1) (arrests where an applicant is free on bail or on his or her own recognizance pending trial), and (f) (setting forth limited exceptions for health care facilities); (2) referral to or participation in a pre-trial or post-trial diversion program; and (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law; and
  • Interfering with, restraining, or denying the exercise of any right provided under the new law. 

Before an employer can withdraw a conditional offer and deny employment solely or in part because of the applicant's conviction history, the employer must make an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job sought. The employer must 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 the employer's individualized assessment results in a decision to disqualify an applicant, the employer must notify the applicant of this preliminary decision in writing. The written notification of the preliminary decision must contain all of the following:

  • Notice of the disqualifying conviction or convictions 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 of the employer's preliminary decision before that decision becomes final and the deadline by which to respond. The explanation must 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 must be provided at least five business days to respond. If within this initial period the applicant notifies the employer in writing that he or she disputes the accuracy of the report and is taking steps to obtain evidence supporting that assertion, the applicant must be provided five additional business days to respond to the notice.

The employer must consider any supplemental information provided by the applicant before making a final decision. If the employer's decision remains unchanged, the employer must notify the applicant in writing of all the following:

  • The final denial or disqualification. At the employer's option, the denial may include an explanation of the employer's reasoning for making the final denial or disqualification;
  • Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and
  • The right to file a complaint with the Department of Fair Employment and Housing.

In addition to the new requirements set forth in this law, the California Fair Employment and Housing Council's ("FEHC") recent regulations regarding the use of criminal history for employment purposes also remain in effect. Our advisory on the recent FEHC regulations can be found here

Practical Impact

Employers with 5 or more employees should consider taking the following steps now to prepare for this new law:

  • Review current job applications, and remove any request for disclosure of criminal convictions for California positions.
  • Determine whether any California cities or counties in which the employer has operations have their own "ban-the-box" requirements that may be more stringent than those provided by the California state law.
  • Review employment policies, job descriptions, job posting templates, and notices of adverse decisions to ensure compliance with the bill, and similar local laws.
  • Adhere to the requirements of the federal Fair Credit Recording Act and California state equivalent, as well as any other federal, state, and local requirements, before conducting background checks and taking adverse action against applicants or employees based on their criminal history. Employers should also consider clarifying with background check providers what information should not be collected or reported in certain jurisdictions to avoid non-compliance with "ban the box" ordinances. Our recent advisories on FCRA compliance are located  here and  here. Establish a protocol to conduct individualized assessments of job applicants/employees with criminal histories, and consider how and when to review these decisions with inside or outside counsel.
  • Establish procedures and develop forms to comply with individual notice, posting, and record-keeping obligations imposed by the ordinance.
  • Train human resource professionals and hiring managers about the ordinance and its requirements, especially the requirement for an individualized assessment of criminal history for each applicant and the restriction on use or dissemination of this information (even if volunteered) before a conditional offer is made. Employers may want to consider designating a particular manager or HR professional to be the point person through which all requests for criminal history are made and evaluated, and to whom all questions are directed.

A copy of the bill can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions