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Criminal History Legislation Moves Forward in California Legislature

Posted by Eric Kingsley | Jun 05, 2017 | 0 Comments

Assembly Bill 1008 places additional conditions on when an employer can inquire about a job applicant's criminal history or use that applicant's criminal history as a factor in denying employment.

Labor and employment laws california legislature

AB 1008, introduced by Assembly Members McCarty, Weber, Holden, Gipson, and Reyes, would make it unlawful for an employer to:

  1. include on any job application questions that seek the disclosure of an applicant's criminal history;
  2. inquire or consider an applicant's prior convictions before extending a conditional offer; and
  3. to consider or disclose various information when conducting a background check.

The bill would also require employers that intend to deny employment to an applicant because of prior convictions to perform an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific job duties, considering the nature and gravity of the offense, the time passed since the completion of the sentence, and the nature of the job. Then, the employer must notify the applicant of the reasons for the decision and provide the applicant 10 days to respond and challenge the accuracy of that information or provide evidence of rehabilitation which it must consider before making a final employment decision, in writing. 

Analysis by the Assembly Committee on Appropriations highlights similar regulations or laws in California, as well as projected objectives as stated by proponents of the bill.    

First, the Fair Employment and Housing Council (FEHC) regulations around the hiring process and prior criminal convictions are set to take effect in July 2017. FEHC regulations identify ways in which employers can face liability when using a candidate's criminal history in hiring and other employment decisions. Importantly, these regulations do not prohibit a California employer from considering criminal information in these decisions. Instead, even though one's status as an “ex-offender” is not considered a protected characteristic under California law, the regulations allow a candidate to bring a discrimination claim if the employer's use of conviction records results in an “adverse impact” on those in protected classes, such as race, national origin and gender.

Second, San Francisco's “Fair Chance Ordinance,” which went into effect in 2014, prohibits certain employers from placing prior arrests or convictions questions on job applicants and from certain inquiries about anything except directly-related convictions. Like AB 1008, the Fair Chance Ordinance requires employers to conduct an individual assessment prior to any denial because of a past conviction and allow the applicant a specified time to correct or explain that information.

Third, more recently with an effective date of January 2017, Los Angeles' “Fair Chance Initiative Ordinance”, significantly restricts employers when conducting a criminal background check or taking adverse employment action because of an applicant's criminal history.

Fourth, AB 1008 is designed to prevent conviction history information from coloring an employer's first impression of job applicants. The National Employment Law Project (NELP) notes that AB 1008 does not prohibit employers from running a background check, but it does require employers to delay that step until later in the job application process. NELP argues that this will help a candidate to overcome the initial stigma of a conviction record when applying for jobs.

Next Steps

AB 1008 succeeded in both the Committee on Labor and Employment and the Committee on Appropriations, and on June 1, was ordered to the Senate. And while this bill, and other labor and employment bills work their way through the legislative process, don't hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers if you have questions about California's existing employment laws.

About the Author

Eric Kingsley

In practice since 1996, attorney and firm co-founder Eric B. Kingsley has litigated complex cases and authored numerous appellate briefs in both state and federal court on behalf of the California law firm of Kingsley & Kingsley, including over 150 class actions. Mr. Kingsley concentrates his pra...

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