2018 Brings New Protections for Job Applicants with Criminal History

Chris Micheli
Chris Micheli is a Principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc.

Governor Jerry Brown signed AB 1008 (McCarty – Sacramento) on October 14, 2017 as Chapter 789 to address employment discrimination based upon criminal conviction history. Employers in California need to be aware of this bill’s numerous provisions that take effect on January 1, 2018.

This new law adds Section 12952 to the Government Code to provide that it is “an unlawful employment practice” for an employer with 5 or more employees to:

  • Include on any employment application any question that seeks the disclosure of an applicant’s conviction history, prior to the employer making a conditional offer of employment to the job applicant;
  • Inquire into or consider the conviction history of the job applicant until after the employer has made a conditional offer of employment;
  • Consider, distribute or disseminate information about any specified results while conducting a conviction history background check; and
  • Interfere with, restrain or deny the exercise of any right under this new code section.

This new law also requires an employer, when intending to deny a job applicant a position solely or in part because of that applicant’s conviction history, to make “an individualized assessment” of whether the job applicant’s conviction history has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”

In addition, this new law provides that, if an employer makes a preliminary decision that the job applicant’s conviction history disqualifies the applicant from employment, then the employer must notify the job applicant of this preliminary decision in writing. That written notification may justify or explain the employer’s reasoning, and must contain specified information.

Thereafter, the job applicant must be provided at least 5 business days to respond to the written notice provided by the employer before a final decision is made. If the job applicant notifies the employer in writing that he or she disputes the report and that he or she is obtaining evidence to support the dispute, then the job applicant must be given another 5 business days to respond to the notice.

Thereafter, the employer must consider information submitted by the job applicant before making a final employment decision. If the employer makes a final decision to deny a job applicant solely or in part because of the job applicant’s conviction history, then the employer must notify the job applicant in writing of his or her specified rights.

This new section does not apply in the following circumstances:

  • To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check;
  • To a position with a criminal justice agency;
  • To a position as a Farm Labor Contractor; or
  • To a position where an employer or agent is required by any state, federal or local law to conduct criminal background checks for employment purposes or to restrict employment based upon criminal history.

The goal of this new law is to help formerly incarcerated persons obtain employment, and the author and proponents have cited statistics that those with conviction records generally have lower rates of turnover and higher rates of promotion. This bill was initially opposed by the California business community, but eventually they removed their opposition due to several requested amendments that the author made to his bill during the past Session.

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