On October 14, 2017, California Governor Jerry Brown announced that he had signed Assembly Bill 1008, amending the California Fair Employment Housing Act (FEHA) to include Government Code section 12952. Essentially, the new section “bans the box” — restricting employer’s ability to make hiring decisions based on conviction history. Going into effect January 1, 2018, it’s critical that employers familiarize themselves with California’s latest round of employment guidelines.
Section 12952 covers all employers with five or more employees, but there are a few notable exceptions:
- Positions as to which the law requires employers to check criminal history for employment purposes
- Positions with criminal justice agencies
- Farm Labor Contractors
What questions can you ask on job applications?
On January 1, 2018, it will be illegal in California for employers to:
- Inquire into a candidate’s criminal history on a job application, unless the application is presented after an employment offer
- Ask about convictions, unless a conditional employment offer was extended
- Consider or distribute criminal history info that California already prohibits employers from considering (arrests without convictions, participation in diversion programs, sealed/dismissed/expunged convictions)
What if an employer decides not to hire based on conviction history?
Employers must execute an individualized assessment of the candidate to determine whether or not their criminal history has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”
How must the candidate be notified of the disqualification?
If the individualized assessment results in the candidate’s disqualification, the employer is required to provide written notice that:
- Identifies the conviction
- Includes a copy of the conviction history report
- Explains the applicant’s right to respond to the notice before the employer’s decision becomes final
- States the deadline for a response
- Explains that the applicant may include evidence challenging the accuracy of the conviction history
What rights does the candidate have?
Candidates who feel that they’ve been treated unfairly by an employer may sue for damages under FEHA.
What should employers do right now?
There are a few steps California employers can take right now to ensure compliance:
- Consider whether or not to revise applications
- Revisit interview questions and guidelines
- Ensure your policies and procedures for background checks align with the new code