California Assembly Bill 1008 is now before the California legislature. AB 1008 would make it unlawful for an employer to include on an application for employment any question regarding the applicant’s criminal history or to inquire into an applicant’s criminal history until after the applicant receives a conditional offer of employment. Thereafter, an employer who performs a background check cannot consider misdemeanor convictions that are more than three years old or felony convictions that are over seven years old.
Before an applicant can be rejected for a position due to a prior conviction, the AB 1008 requires the employer to perform an “individualized assessment of whether the applicant’s history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” The employer in its assessment must consider:
- The nature and gravity of the offense;
- The time that has elapsed since the offense and completion of sentence; and
- The type of job sought by the applicant.
After making the assessment, if the employer decides to disqualify the applicant, the employer will be required to provide written notice to the applicant that includes all of the following:
- The particular conviction at issue;
- A copy of the conviction report obtained;
- Examples of mitigation or rehabilitation evidence that the applicant may demonstrate;
- Notice that the applicant can appeal the decision and the time for such appeal.
The applicant is to be given at least 10 days to respond to the decision before it becomes final and can submit evidence of mitigation or rehabilitation via any of the following:
- At least one year has passed since completion of a correctional institute without additional convictions;
- The applicant has complied with the terms and conditions of parole;
or - Any other evidence of rehabilitation, such as a letter of recommendation.
If, even after the response by the applicant, the employer decides to deny the applicant the job, the employer under AB 1008 will be required to provide all of the following to the applicant in writing:
- The final decision on denial of employment;
- The procedures for challenging the employer’s decision or requesting reconsideration;
- Whether the applicant is eligible for any other positions with the employer;
- When the applicant is eligible to reapply for the position; and
- The right to file a complaint with the Department of Fair Employment and Housing (DFEH).
While this is an effort to pass a statewide prohibition based on public policy efforts to reintegrate convicts into society and reduce recidivism, a number of California cities have already enacted similar ordinances applicable to employers within their jurisdiction. In addition, the Department of Fair Employment and Housing recently enacted its own regulations that become effective July 2017.
Employers should be prepared to start following these stringent rules to avoid discrimination lawsuits under the proposed law. It is highly recommended that employers contact their legal counsel to review their employment applications and help draft and institute policies that assure compliance with this proposed, and similar enacted, law.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
