Assembly Bill 1008 is making its way through the California legislature, after being passed in its amended form by the Committee on Appropriations on May 26, 2017. The Bill would repeal Labor Code section 432.9 and 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. The justification offered for the bill is that employment of formerly incarcerated individuals is essential to reintegrating them into society and reduces recidivism.
Under the bill, once an employer is able to perform a background check, the employer cannot consider any misdemeanors for which three years have passed since conviction or felonies for which seven years have passed since conviction.
Prior to denying the applicant the position (either in whole or in part) due to the prior conviction, the employer is required to make 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.” In coming to its conclusion, the employer must consider:
- The nature and gravity of the offense;
- How much time has passed since the offense and completion of sentence; and
- The type of job sought.
After making the assessment, if the employer decides to disqualify the candidate, it must provide notice in writing 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 must be provided at least 10 days to respond to the decision before it becomes final. The applicant can submit evidence of mitigation or rehabilitation that can be established by 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 still decides to deny the applicant the job, the employer must 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.
Assembly Bill 1008 is the icing on the cake for a slew of regulations and proposals in recent years designed to prevent employers from considering an applicant’s prior criminal convictions. Several cities in California recently enacted ordinances and the Department of Fair Employment and Housing recently enacted its own regulations, set to go into effect in July 2017. Employers should be prepared to start following these stringent rules so as to avoid discrimination lawsuits under the proposed law.
Jackson Lewis P.C. June 1, 2017